P. v. Elopre
Filed 7/20/12 P. v. Elopre CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ROGELIO ELOPRE,
Defendant and
Appellant.
B234520
(Los Angeles County
Super. Ct. No. VA117032)
APPEAL
from a judgment of the Superior Court
of
County. Michael L.
Schuur, Judge. Affirmed as modified.
Richard A. Levy,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Rogelio Elopre appeals from the
judgment entered after he was convicted of two counts of lewd conduct on a
child under 14, one by force and one without force. We reject his contentions that the trial
court: on its own motion should have
instructed the jury with certain lesser included offenses, and should have
given an instruction clarifying that breasts are not sexual organs; erred by
not suppressing his statement to police investigators; and erred by not
allowing both cross-examination and argument concerning whether the victim’s
hymen was still intact. Because the
trial court erred in calculating his presentence
to reflect the correct amount and affirm the modified judgment.
FACTS AND PROCEDURAL HISTORY
Rogelio
Elopre was charged with five counts of sexual abuse after his former
stepdaughter, C.E., told her mother, B., that Elopre had repeatedly molested
her between 2005, when C.E. was nine years old, and 2008. According to C.E., Elopre continued to act as
a caretaker for her and her brother even after Elopre and B. divorced in 2003.
The first incident
occurred during the summer before C.E. entered fifth grade, when she fell
asleep in her mother’s room, but woke to find Elopre, who had his fingers
inside her vagina.
title="">[1] Elopre told C.E. not to say anything to her
mother, and C.E. complied because she was scared and nervous. This incident was the basis for count 1, a
charge of non-forcible lewd conduct on a child under 14. (Pen. Code, § 288, subd. (a).)
C.E.’s mother had
recently remarried, and the family moved to a new home right before C.E.
entered the fifth grade. Elopre
continued to care for the children after school and had a key to the
house. Sometime after moving to the new
house, C.E. came home from school one day and Elopre told her to go into her
mother’s bedroom. Once inside that room,
Elopre took off C.E.’s blouse, licked and kissed her breasts, and put his
fingers inside her vagina. This incident
was the basis of count 2, for lewd conduct on a child under 14 by force,
duress, or fear. (§ 288, subd.
(b)(1).)
C.E. said Elopre
continued this pattern, including occasional acts of cunnilingus, almost every
other day for the next few years. Elopre
sometimes grabbed C.E.’s head and forced her to fellate him. One such incident was the basis of count 3,
for aggravated sexual assault.
(§ 269, subd. (a)(4).)
Elopre would sometimes coerce C.E. into letting him put his fingers
inside her vagina, with one such incident alleged as the basis of count 4 for
with Elopre inside his car, waiting to pick up her mother from work, when
Elopre had C.E. masturbate him. This
incident was the basis of count 5, for forcible lewd conduct. (§ 288, subd. (b)(1).) The information also alleged that Elopre was
ineligible for probation as to counts 1, 2, and 5 because those offenses
involved substantial sexual conduct.
(§ 1203.066, subd. (a)(8).)
The other evidence
against Elopre came from police officers who interviewed him after he was read
and had waived his Miranda rights.
interviews got only flat denials from Elopre.
The third, who was trained in special interrogation techniques,
testified that Elopre took the same tack with her, but eventually said that
C.E. came to his bed twice, where she tried to put his hand on her vagina, took
his penis into her mouth, and then tried to rub her vagina on his face. Elopre told the officer that he rebuffed
these advances.
Elopre testified
and denied ever having sexual contact with C.E., or having told the third
interviewing officer that he awoke with his penis inside the girl’s mouth. He did wake up from a nap once to find C.E.
crawling on him. He pushed her away, and
when C.E. pulled at his pajamas, he told her to stop. He denied having a key to the house. He testified that his employment during parts
of the period in question prevented him from being at the house at all, and
produced employment records to back up his claim.
The jury convicted
Elopre of counts 1 (non-forcible lewd conduct) and count 2 (forcible lewd
conduct). He was acquitted of count 4
(aggravated sexual assault for digital penetration). The jury hung on counts 3 and 5, and those
were dismissed. Elopre contends we
should reverse the judgment because:
(1) in connection with count 2 for forcible lewd conduct, the
trial court should have instructed the jury on the lesser included offense of
non-forcible lewd conduct because there was evidence no force was used;
(2) as to both counts 1 and 2, the trial court should have
instructed on the crime of battery because it is a lesser included offense of
lewd conduct; (3) in connection with the section 288 lewd
conduct-oral copulation counts, the court should have instructed the jury that
breasts were not sexual organs because this omission misled the jury to
determine that Elopre’s oral contact with C.E.’s breasts was an act of oral
copulation for purposes of the section 1203.066 substantial sexual conduct
allegations; (4) his statement to the third interviewing officer
about C.E. aggressively initiating sexual encounters with him should have been
suppressed because the officer used a prohibited form of trickery that
undermined his Miranda warnings;
(5) the trial court should have let him ask the investigating police
detective if she knew whether C.E.’s hymen was intact, and also erred by not
letting him argue to the jury the lack of evidence that C.E. sustained injuries
to her vaginal area; and (6) the trial court miscalculated his
presentence custody credits.
1.
An
Instruction on Non-Forcible Lewd Conduct as a Lesser Included Offense of
Forcible Lewd Conduct Was Not Required
Section 288,
subdivision (a) describes the offense of non-forcible lewd conduct. It applies to any person who willfully
commits any lewd or lascivious act on a child under age 14 with the intent of
arousing, appealing to, or gratifying the sexual desires of that person or the
child. The crime of forcible lewd
conduct occurs when that same conduct is committed by force, violence, duress,
menace, or fear of immediate and unlawful bodily injury to the victim or
another person.
title="">[4] (§ 288, subd. (b)(1).)
In connection with
his count 2 conviction for forcible lewd conduct, Elopre contends the trial
court had a duty to instruct the jury on the lesser included offense of
non-forcible lewd conduct even though he did not request such an instruction. That duty arose only if there was substantial
evidence that could have supported a jury finding that no force was used. (People
v. Hayes (2006) 142 Cal.App.4th 175, 181.) Elopre contends there was such evidence
because C.E. testified that the count 2 incident was like the count 1 incident,
where C.E. awoke to find Elopre’s fingers in her vagina and no force was
used. Elopre also contends that even
though C.E. testified that Elopre used force and overcame her resistance during
post-count 2 incidents, she never expressly said such force was used during the
count 2 incident itself.
C.E.’s testimony
that the count 2 incident was like the non-forcible, count 1 incident, must be
placed in context. After describing the
count 1 incident, where she awoke to find that Elopre had his fingers in her
vagina, C.E. was asked if she recalled Elopre “doing things” to her after her
family moved to its new home. C.E. said
Elopre would kiss and lick her breasts and move his fingers in and out of her
vagina. This took place in her mother’s
bedroom after she returned home from school and Elopre told her to enter that
room. The prosecutor asked what would
happen once inside the room, and C.E. said Elopre would take off her shirt and
kiss and lick her breasts. The
prosecutor asked again whether Elopre placed his fingers inside C.E.’s vagina,
and she answered yes. The prosecutor
then asked whether this was “similar to the previous occasion that you
described” and C.E. answered yes. The
prosecutor asked if Elopre said anything while this took place, and C.E. said
he told her “not to tell my mom.”
Elopre contends
that C.E.’s statement that the second incident was like the first one creates
an inference that the second incident was non-forcible. We disagree.
The first incident occurred when C.E. was asleep and she only became
aware of the completed act of lewd conduct upon awakening. Because Elopre used no force other than that
necessary to commit the count 1 lewd conduct, it was not forcible. (People
v. Alvarez (2009) 178 Cal.App.4th 999, 1004-1005.) The count 2 incident, where Elopre ordered
C.E. into her mother’s room, removed her blouse, kissed her breasts, and
fingered her vagina, occurred when C.E. was awake, and she cannot possibly have
meant that the second incident was just like the first one in that sense. Instead, C.E.’s statement, which came in
response to a question about Elopre fingering her vagina, can only mean that
when he committed that particular act during the count 2 incident, that act was
the same as what happened during the count 1 incident. Therefore, the inference that Elopre contends
we must draw is not reasonable.
The count 2
incident took place after the count 1 incident, where Elopre warned C.E. not to
tell her mother about what happened. She
came home from school and was ordered into her mother’s room, where Elopre took
off her blouse and began to lick and kiss her breasts, then insert his fingers
in her vagina. When describing such
incidents in general, C.E. testified that she would sometimes refuse to go into
her mother’s room, but complied when Elopre yelled at her. Once there, she would sometimes resist by
pushing, but he was bigger and stronger and was able to overcome her. The jury could have concluded this applied to
the count 2 incident, but Elopre contends they were not required to draw that
inference.
Assuming for the
sake of discussion that he is correct, we conclude that the evidence shows
conclusively that C.E. complied out of duress.
Duress means a direct or implied threat of force, violence, danger,
hardship or retribution sufficient to coerce a reasonable person of ordinary
sensibilities to perform or acquiesce in an act to which they would not
otherwise have submitted. (
103 Cal.App.4th 8, 13, disapproved on another ground in
229, 248, fn. 12.) Determining whether
duress existed turns on the total circumstances, including the age of the
victim and her relationship to the defendant.
(Id. at pp. 13-14.) Duress may be found even if the victim testifies
that the defendant did not use force or threats, particularly where the victim
is a young child and the defendant is a much larger adult who occupies a
position as an authority figure in the child’s life. (Id.
at p. 14, and cases cited therein;
2 Cal.App.4th 999, 1005.)
Elopre had been
C.E.’s stepfather and, by virtue of his role as an after-school caretaker,
still assumed the role of an authority figure in C.E.’s life. C.E. testified that in his caretaker role he
often gave her instructions, which she obeyed because her mother told her to do
so. After the count 1 incident, C.E. was
scared and nervous and said that as a result, she did not tell her mother what
had happened. Elopre was not just an
authority figure, but was also much larger than C.E., who was 9 or 10 when the
count 2 incident occurred. Based on
this, no reasonable jury could find that C.E. willingly complied during that
incident, or that it was the result of anything other than duress due to her
relationship with Elopre, and the count 1 incident, where he told her to keep
silent about what had happened. (
3 Cal.App.4th 765, 775 [warning a child not to report
child should not otherwise protest or resist the sexual assault].) Accordingly, we conclude the trial court did
not err by failing to instruct the jury with the lesser included offense of
non-forcible lewd conduct in connection with count 2.
2.
An Instruction
on Battery Was Not Required
Relying on
146 Cal.App.4th 1278, 1293-1294 (Thomas),
Elopre contends that battery is a lesser included offense of both forcible and
non-forcible lewd conduct, and that the trial court was required to instruct on
that offense as to counts 1 and 2 even though he did not request such an
instruction.
Elopre
acknowledges that there is a split of authority among the various Courts of
Appeal as to whether battery is a lesser included offense of lewd conduct under
section 288. The court in
222 Cal.App.3d 723, 738-739, held that battery was not a lesser included
offense of lewd conduct. The issue is
now before our Supreme Court, which granted review of two recent decisions that
reached opposite conclusions on this issue:
People v. Gray, review granted
December 14, 2011, S197749, and People
v. Shockley, review granted March 16, 2011, S189462.
held that battery is a lesser included offense of lewd conduct.
We need not take
sides in this dispute, however. As
Elopre acknowledges, the instruction was not required unless there was
substantial evidence that he committed a battery instead of an act of lewd
conduct upon C.E. Elopre finds such evidence
in two sources: (1) his statement to the police, where he said he
twice awoke to find C.E. atop him, and pushed her away when she tried to
fellate him, place his hand on her vagina, and rub her vagina on his face; and
(2) in his trial testimony that he awoke
to find C.E. crawling atop him and that he pushed her away. Assuming for the sake of discussion that
battery is a lesser included offense of lewd conduct, we conclude that the
evidence did not justify that instruction in this case.
Elopre’s reliance
on Thomas, supra,
146 Cal.App.4th at pages 1293-1294, to support this contention is
misplaced. After concluding that
lewd conduct, the Thomas court
considered whether the trial court committed prejudicial error by failing to
give that instruction in regard to the testimony of two victims concerning
three separate incidents. The first
victim testified that the defendant got into bed with him and began touching
him under his boxer shorts. The
defendant admitted to the police that he once touched the victim’s buttocks in
order to wake him up, but denied putting his hand under the victim’s shorts or
having been sexually aroused. The
defendant’s version of events would have supported a battery instruction, but
held the error harmless due to the strong evidence against him. The first victim also testified that the
defendant once touched his shoulder while the victim was playing a video
game. The trial court’s failure to
instruct on battery as to that incident was prejudicial error because the jury
could have found it was an innocent touching.
(Ibid.)
The second victim
testified that the defendant grabbed his buttocks and said “nice ass.” The Thomas
court said that because the touching was accompanied by a sexual comment, when
combined with the evidence of the defendant’s numerous other sexual offenses
against other boys, no reasonable jury could have concluded the incident was merely
an offensive touching that constituted a battery, as opposed to a lewd act
under section 288. Accordingly, a
battery instruction was not required as to that incident. (Thomas,
supra, 146 Cal.App.4th at p. 1294.)
The incidents in
instruction were defendant-initiated physical contacts that could have been
free of any sexual intent under section 288, but could have been considered a
battery under section 242, where only a slight unprivileged touching is needed
to satisfy the force requirement. (
123 Cal.App.4th 855, 860, fn. 2.)
Elopre’s version
of events was much different, however.
Instead of initiating a physical contact that could have been a battery,
Elopre claimed he merely pushed C.E. away when she tried to initiate sexual contact with him. If Elopre had been
charged with battery, and had his version of events been believed, he would
have been acquitted because the physical contact he made in response to C.E.’s
unwanted advances was a protected form of self-defense. (§§ 692, subd. (1), 693, subd. (1) [a
party about to be injured is entitled to make lawful resistance sufficient to
prevent an offense against his person]; People
v. Duchon (1958) 165 Cal.App.2d 690, 693 [a battery cannot be committed
by acts done in self-defense].) In
short, under Elopre’s version of events, he did not commit a battery at
all. Therefore, even if battery were a
lesser included offense of lewd conduct, there was not sufficient evidence to
require such an instruction.
3.
An
Instruction Clarifying That Breasts Are Not
Sexual Organs Was Not Required
The jury found
true the allegations under section 1203.066 that Elopre had substantial sexual
contact with C.E. when he committed the crimes charged in counts 1 and 2. The statute defines substantial sexual
contact to mean “penetration of the vagina or rectum of either the victim or
the offender by the penis of the other or by any foreign object, oral
copulation, or masturbation of either the victim or the offender.” (§ 1203.066, subd. (b).) The jury was instructed that substantial
sexual contact “means penetration of the vagina of the victim by a foreign
object, oral copulation or mast[u]rbation of either the victim or the defendant. [¶]
Masturbation is defined as any contact, however slight, of the sexual
organ of the victim or the defendant with the intent to arouse sexual desire in
either person. Masturbation may occur
under or over the clothing.” In
connection with the section 288 forcible lewd conduct-oral copulation count,
the jury was instructed that oral copulation “is any contact, no matter how
slight, between the mouth of one person and the sexual organ or anus of another
person.”
Pointing to a
variety of non-legal sources, Elopre contends that although breasts are not
technically sexual organs, they are commonly considered as such. Because the meaning of sexual organ was not
defined in the instructions for the forcible oral copulation count, and because
the term “sexual organ” does not have a plain, unambiguous meaning, he contends
the trial court had a sua sponte duty to clarify its instruction and advise the
jury that breasts are not sexual organs.
According to Elopre, the trial court’s failure to make this clarification
as part of the section 288 instruction spilled over into the section 1203.066
substantial sexual contact instruction, misleading the jury to mistakenly
believe that Elopre committed oral copulation when he kissed and licked C.E.’s
breasts, and therefore carry that mistake over into its findings that he
committed substantial sexual contact.
Elopre reasons
that even though count 1 involved only digital penetration, the jury somehow
might have concluded that it also involved licking and kissing C.E.’s breasts,
as occurred on other occasions. As a
result, the jury could have based its findings on the two section 1203.066
allegations on breast contact alone in the mistaken belief that licking C.E.’s
breasts constituted oral copulation.
Elopre contends
this is the only possible explanation for the jury’s decision to acquit him of
count 4, which involved digital penetration of the vagina, while convicting him
of count 2, which also involved digital penetration of the vagina and breast
contact, and which took place during the same period as the count 4
incident. According to Elopre, there was
no reason to convict him of count 2 based on digital penetration, yet acquit
him of count 4 for digital penetration.
As a result, he contends, the count 2 conviction must have been based on
breast contact.
When determining
whether a jury instruction was ambiguous, we consider the instructions as a
whole and ask whether there was a reasonable likelihood the jury misconstrued
or misapplied the challenged instruction.
(People v. Carrasco (2006)
137 Cal.App.4th 1050, 1061.) When
the instructions are read as a whole, we do not believe the jury could have
been confused by the instruction and somehow based its findings of substantial
sexual contact on the notion that he committed oral copulation when he licked
and kissed C.E.’s breasts.
First, the oral
copulation instruction included language that Elopre does not mention: after stating that oral copulation involved
contact between the mouth of one person and the sexual organ of another, the
instruction concluded with the clarification that “[p]enetration is not
required.” Of course, mouth to breast
contact never involves penetration, and this language by itself would have
alerted the jury to the fact that oral copulation did not involve such conduct.
Second, after stating
that vaginal penetration, oral copulation, or masturbation each amount to
substantial sexual contact, the section 1203.066 instruction defined
masturbation as “any contact, however slight, of the sexual organ of the victim or the defendant with the intent to
arouse sexual desire in either person.
Masturbation may occur under or over the clothing.” The common dictionary definition of
masturbation is the manipulation of one’s own genitals, or the genitals of
another. (People v. Chambless (1999) 74 Cal.App.4th 773, 785,
fn. 6), and under the common dictionary definition, “sexual organs” refers
to external genital reproductive organs.
(People v. Catelli (1991)
227 Cal.App.3d 1434, 1450-1451.)
Under Elopre’s
theory, a jury might also conclude that masturbation occurs from fondling a
victim’s breasts because breasts are sexual organs. Given the common, everyday meaning of the
term “masturbation,” however, no reasonable jury would conclude that the term
sexual organ for purposes of masturbation referred to breasts. Instead, when looking at the masturbation
component of the section 1203.066 instruction, the jury would have to conclude
that the term “sexual organ” referred to genitalia. By the same token, the jury could not then
interpret oral copulation by way of oral contact with the victim’s sexual
organs to mean mouth-to-breast contact.
Therefore, we
conclude that when the instructions are read as a whole, the jury could not
possibly interpret them to mean that oral copulation for purposes of the substantial
sexual contact allegations could be accomplished by licking or kissing of the
breasts, and therefore no instructional
error occurred.
The
Police Detective’s Deceptive Techniques Did Not Violate Elopre’s Miranda Rights
A.
Applicable Law
Under the due
process clause of the Fourteenth Amendment to the United States Constitution,
involuntary statements by a criminal suspect that a law enforcement officer
obtained by coercion are inadmissible in criminal proceedings. (People
v. Neal (2003) 31 Cal.4th 63, 67.)
In Miranda v. Arizona, supra,
384 U.S. 436, the United States Supreme Court held that before the police
may question a suspect, they must first advise him of his rights to remain
silent and to have a lawyer present during questioning. A suspect’s Miranda rights may also be violated if the officers properly inform
the suspect of those rights, but use deceptive tactics that render any
statements involuntary under all the circumstances. (Hart
v. A.G. for Fla. (11thCir. 2003) 323 F.3d 884, 893.)
Elopre contends
that the statements he made to the third detective who interviewed him
concerning C.E.’s alleged improper sexual advances to him were obtained by
trickery and were therefore involuntary because the detective told him in
essence that she was there to help him and was working for him.
No single factor
is dispositive when evaluating whether a suspect’s statement was
voluntary. Factors relevant to this
determination include the existence of police coercion, and the length,
location, and continuity of the interrogation, along with the defendant’s
maturity, education, physical condition, and mental health. (People
v. Williams (2010) 49 Cal.4th 405, 436.) The essential question is whether the
statement was the product of free will and choice, or whether the defendant’s
will was overborne and his capacity for self-determination critically impaired
by coercion. The courts prohibit only
those psychological ploys which are so coercive that they tend to produce a statement
that is both involuntary and unreliable.
(Ibid.) A statement is not involuntary unless the
coercive police conduct and the statement are causally related. (Id.
at p. 437.)
On appeal, the
trial court’s factual findings concerning the circumstances surrounding the
statement are upheld if they are supported by substantial evidence, but we
independently review the trial court’s conclusions concerning whether the
statement was voluntary. (
49 Cal.4th at p. 436.)
B.
Facts From Miranda Suppression Hearing
Elopre did not
make a pretrial motion to suppress his statements to the police. Instead, the motion came late in the trial
during the testimony of the third detective to interview him, after the first
police interviewer had already testified to overhearing the third interview.
Sheriff’s
Detective Doreen Evans was the lead investigator on the case. Evans testified that after arresting Elopre,
she read him his Miranda rights. Although Elopre waived his
videotaped interview, he denied C.E.’s allegations. Evans then brought in another detective to
interview Elopre, who once again gave a videotaped interview where he denied
any misconduct. Evans then decided to bring in Deputy Michele
Brown, an interrogation specialist.
According to
Evans, Elopre spent the night in jail and met with Brown the next morning. Evans testified that she observed most of
Brown’s three-hour interview with Elopre.
Although Elopre at first denied any sexual misconduct, Evans said that
Elopre eventually admitted to having sexual contact with C.E. When Brown was through interviewing Elopre,
Evans met with him again to discuss the statements he had just made to
Brown. According to Evans, Elopre said
that on two occasions he woke up and found that C.E. had his penis in her
mouth. Elopre said C.E. was very
aggressive and grabbed his hand and put it on her vagina, and then tried to rub
her vagina on his face. Elopre said he
pushed the girl off of him. That
interview was also videotaped.
Deputy Brown
testified later on about her interview with Elopre. She began by discussing her interrogation
training, including something known as the Reid Technique, which involves
establishing a rapport with a suspect and developing their trust. This involves sitting directly across from
the suspect, then making eye contact and knee-to-knee or hand-to-knee body
contact. The technique also involves a
display of empathy “in that you’re kind of there for them. That you’re . . . going to be there for them
and that it’s ok.” She does not wear a
uniform and does not identify herself as part of law enforcement. She then tells them “that I am not been hired
[sic] by the detective. I am tell them [sic] I was not hired by you.
So, if I am there working for anybody I am here to help you.”
This testimony
prompted an objection by Elopre’s lawyer, along with a motion to suppress
Elopre’s statements to the detectives, because Deputy Brown’s interrogation
techniques fooled Elopre into thinking she was on his side “almost in [the]
capacity of an attorney,” and therefore violated his Miranda rights. The trial
court deferred a ruling because Brown had not yet testified about Elopre’s
statements to her. Brown later testified
that she used these techniques on Elopre and advised him of his
agreed to a videotaped interview. When
she was asked what Elopre had said, defense counsel renewed the objection.
The trial court
said that “police officers are allowed to lie to somebody to get a confession,”
such as when two robbery suspects are separated and each is told that the other
one had confessed and implicated him.
The trial court overruled the objection “because he was
before, so he pretty much knew what was going on . . . .”
C.
The Deceptive Interrogation Technique Did Not
Induce Elopre’s Statements
Elopre contends
that Deputy Brown’s interrogation tactics employed a form of deceptive coercion
known as the “false friend” ploy, a term first coined in Spano v. New York (1959) 360 U.S. 315 (Spano). In that case, the
defendant called a long-time friend who was a police officer to say that he had
just killed a man following a dispute.
The defendant was eventually brought in for questioning, but his lawyer
told him not to say anything to the police.
After the lawyer left, the defendant’s police officer friend, acting on
orders, made four attempts to obtain a statement from the defendant by falsely
claiming that the defendant’s initial phone call had gotten the young officer
in trouble and jeopardized his job. The
defendant refused to say anything, but finally relented during the fourth
attempt and confessed. The Supreme Court
held that the confession was coerced because the defendant’s will was overborne
by a protracted series of interrogations, culminating in the numerous appeals
to sympathy by his false friend. (
143 Cal.App.3d 970 (Adams),
where the defendant was convicted of murder in the shooting death of her
boyfriend.
victim, she eventually confessed after the Kern County Sheriff, who knew
defendant through their church, appealed to her religious convictions during a
lengthy discussion. The sheriff played
on the defendant’s guilt for having lived with the victim while unmarried, and
her fear of going to a mental institution.
The defendant testified at the suppression hearing that she considered
the sheriff to be a friend, and that she changed her story and confessed
because she feared going to a mental hospital, and also feared eternal
damnation. The Adams court held that the confession had been coerced by the
sheriff’s improper use of the defendant’s religious beliefs as a weak spot to
overcome her will and obtain her confession.
(Id. at pp. 987-990.)
We admit that we
are troubled by Deputy Brown’s statements that she “had not been hired by the
detective” and that if she was “there working for anybody I am here to help
you.” Combined with the fact that she
was not in uniform and did not identify herself as a deputy, these statements
involved a form of trickery which, under the right circumstances, could
undermine the Miranda warnings she
gave by leading a suspect to conclude that speaking with her was to his benefit
and that his statements would not be used against him. However, those circumstances are not present
here. In explaining our conclusion, we
turn back to the events that led to Elopre’s incriminating statements.
First, Elopre had
been in custody overnight after having twice waived his Miranda rights and given interviews where he denied any sexual
misconduct or contact with C.E. Second,
he concedes on appeal that he knew Brown was a deputy, thereby ameliorating
Brown’s deceptive statement that she had not been hired by the detective, along
with her failure to identify herself as a deputy. Third, Elopre also admits that Brown read him
his Miranda rights, and that he once
more waived those rights. Fourth,
Brown’s deceptive statement that she was there to work for Elopre came at the
start of the interview. Despite that softening-up
technique, Elopre responded to Brown just as he had with the two investigators
who interviewed him the day before – with a flat-out denial of wrongdoing.
Brown testified
that her initial appeals to Elopre concerned being honest and how he would feel
better if he admitted what happened because he would not have to live with the
guilt. Elopre continued to deny any
wrongdoing, but finally started talking more about C.E., and how teenage girls
looked older now than they had when he was young. At this point, Brown testified, Elopre’s
“demeanor started to change. He started
to relax a little bit. He started to
become a little bit more open. Had
started to nod, which is usually an indication to me that it is a theme that
they’re agreeing with.” In response,
Brown began talking about C.E. and whether she was aggressive for her age. Elopre agreed, and then “his story started to
change.” It was at that point that
Elopre described the incidents where he claimed C.E. became sexual with
him. Brown confirmed that this all came
from Elopre, and that he opened up after the topic turned to whether C.E. might
have been the aggressor.
In short, Brown’s
deceptions did not cause Elopre to incriminate himself. Instead, during the first part of his
interview, right after Brown’s deceptive statements, he continued to deny any
wrongdoing. Elopre made the damaging
statements only after he turned the
topic to the sexually precocious appearance of teenage girls, leading Brown to
wonder whether C.E. had been the aggressor.
Furthermore, his motive for those false exculpatory statements was the
same as his earlier denials – to avoid criminal responsibility. (People
v. Tate (2010) 49 Cal.4th 635, 684.)
As a result, based on our independent review, we conclude that Elopre’s
statements were not causally related to Brown’s deceptive tactics. (People
v. Williams, supra, 49 Cal.4th at p. 437.)
5.
The Trial
Court Did Not Err By Excluding Evidence and Argument About the Lack of Medical
Evidence Concerning the Condition of C.E.’s Hymen
On
cross-examination, Detective Evans acknowledged that no medical exam of C.E.
had been performed. On redirect, Evans
explained that such an exam would normally occur within 96 hours of an alleged
assault, but did not in this case because C.E. reported the crimes long after
they took place. On recross-examination,
defense counsel asked Evans, “So, you don’t know if her hymen is still intact
or not” The prosecutor objected on the ground that the question called for an
expert opinion. The trial court said
that this was “outside [Evans’s] expertise,” and that Evans “doesn’t know
anything because she never had a doctor examine her.”
Defense counsel
tried to raise this issue during jury argument.
Counsel told the jury that there should have been signs of injury, such
as scratches or bloody underwear, if Elopre had been digitally penetrating C.E.
as often as she alleged. The prosecutor
objected, noting that it was fair to comment on the absence of a medical
examination, but that the argument about
speculation. The trial court agreed.
Defense counsel
then argued that: “There is no medical
evidence at all. The court has told you
that. I even asked about the hymen, and
of course [the prosecutor] objected to that.
But, the court said, well, they don’t know because there was no medical
exam. If that has been going on every
other day for three years, I’m sure the hymen would have been broken. And that would have been of some
interest.” The prosecutor objected
again, and the court sustained the objection, telling the jury that “we don’t
know whether it would have been or not because we don’t have any medical
testimony in that regard.”
During closing
argument, the prosecutor pointed out to the jury that there had been no
evidence concerning the possibility of damage to a hymen from digital
penetration, accusing defense counsel of asking the jury to speculate when he
could have brought in an expert witness if he wanted to explore the issue. No objection was made to that statement.
Elopre contends
that the trial court’s rulings limiting his cross-examination of Detective
Evans and restricting his jury argument were wrong because the notion that
repeated digital penetration will rupture the hymen is a matter of common
knowledge that does not require expert opinion testimony. The end result of this, he contends, is that
the trial court prevented the jury from applying Evidence Code section 412,
which would have allowed it to view the prosecution’s evidence with distrust
because it failed to offer stronger evidence – the results of a medical
examination – when it was within its power to do so.
Elopre’s argument
is flawed in several respects. First,
although he cites several decisions concerning the general rule that no expert
testimony is required for matters of common knowledge, none concern this
issue. We therefore deem that issue
waived.
Second, the
factual predicate for his contention concerning the potential for damage to
C.E.’s hymen or other visible injuries is missing. Although C.E. testified that Elopre moved his
fingers quickly in and out of her vagina, she was never asked by either party,
and therefore did not testify, as to how deeply Elopre would embed his fingers
or whether this conduct caused her any pain or discomfort.
Third, as far as
the disputed question asked of Detective Evans, it was effectively
answered. Defense counsel asked her to
confirm that she did not know whether C.E.’s hymen had been ruptured, and the
trial court told the jury that Evans did not know because no medical exam had
been performed.
Fourth, as far as
the Evidence Code section 412 instruction is concerned, none was required
because none was requested (People v.
Jurado (1972) 25 Cal.App.3d 1027, 1033) and because there was in fact
no better evidence for the prosecution to produce (People v. Simms (1970) 10 Cal.App.3d 299, 312-313). Alternatively, we hold that failure to give
the instruction was not prejudicial because the failure to produce better
evidence was explained, and the jury was told by the court that the failure to
conduct a medical examination of C.E. was properly before it. (Rivera
v. Goodenough (1945) 71 Cal.App.2d 223, 234.)
6.
The
Abstract of Judgment Must Be Modified to Show the Correct Amount of
Pre-sentence Custody Credits
When the trial
court sentenced Elopre, it awarded him 281 days of actual custody credits and
42 days of good conduct credits, representing 15 percent of the actual custody
credit award. (§ 2933.1.) However, the abstract of judgment states that
Elopre received 41 days of good conduct credits. Elopre contends, and respondent concedes,
that the abstract of judgment must be modified to state the correct number of
credits. We will order that modification
as part of our disposition.
DISPOSITION
The judgment is modified
to reflect presentence good conduct custody credits of 42 days. As so
modified, the judgment is affirmed. The
superior court is ordered to prepare an amended abstract of judgment and
transmit it to the Department of
Corrections.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
GRIMES,
J.
name="_ftn1" title="">[1] C.E.’s
testimony was a little unclear when it came to the dates, but the information
alleged that this event took place in 2005.
name="_ftn2" title="">[2] All
further undesignated section references are to the Penal Code.
