P. v. Gonzalez

Filed 1/6/10 P. v. Gonzalez CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

I.Introduction

Nicolas Honesto Gonzalez (Gonzalez) appeals from his conviction of 16 counts of lewd and lascivious acts with a child under age 14, and four counts of sexual acts with a child under age 10. He waived his right to a jury, and was convicted following a court trial. His counsel has filed an opening brief pursuant to People v. Wende,[1] in which no issues are raised, and asks this court for an independent review of the record. Counsel declares she notified Gonzalez he could file a supplemental brief raising any issues he wished to call to this courts attention. No supplemental brief has been filed. Upon independent review of the record, we find no arguable issues are presented for review and affirm.

II. Procedural Background

Gonzalez was charged by amended information with 23 counts of sexual crimes against a single minor. The information alleged 17 counts of violating Penal Code[2] section 288, subdivision (a) (lewd acts on a child under age 14), two counts of violating section 288.7, subdivision (a) (sexual intercourse or sodomy with a child age 10 or under), three counts of violating section 288.7, subdivision (b) (oral copulation or sexual penetration with a child age 10 or younger), and one count of violating section 288.5, subdivision (a) (continuous sexual abuse of a child.)

Prior to trial, Gonzalez moved to suppress his statement to police on the grounds it was involuntary and in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). The court denied his motion. The court also granted the prosecutors motion to admit testimony of the minors mother about the minors initial statement to her regarding the sexual abuse under the fresh complaint doctrine.

Gonzalez rejected a negotiated plea in which he would have been sentenced to 30 years to life. The court advised him that if he was convicted of all counts, the minimum sentence would be 25 years to life, and the maximum would be 94 years to life.

Gonzalez waived his right to a jury trial. Following a bench trial, the court dismissed one count of violating section 288, subdivision (a), and one count of violating section 288.7, subdivision (a), based on insufficient evidence. The court also dismissed the count alleging violation of section 288.5, subdivision (a), because it was charged in the alternative. The court found Gonzalez guilty of the remaining charges, and found all the allegations under sections 1192.7, subdivision (c)(6), and 1203.066, subdivision (a)(8), to be true.

The court sentenced Gonzalez to a total term of 46 years to life. The court designated count 6, a violation of section 288.7 subdivision (a), as the principal indeterminate term, and imposed a sentence of 25 years to life. It imposed a 15-years-to-life term for count 12, a violation of section 288.7, subdivision (b), to run consecutively to the term imposed for count 6. The court also imposed a 15-years-to-life term for count 8, to run concurrently with the term imposed for count 12. The court imposed a 15-years-to-life term for count 22, but stayed execution of the sentence under section 654. The court designated count 14, a violation of section 288, subdivision (a), as the principal determinate term, and imposed the midterm of six years. The court imposed a three-year term for counts 10 and 13, and six-year terms for counts 14 through 21, all to run concurrently, but stayed sentence on counts 17, 19 and 20 under section 654.

Gonzalez filed a timely notice of appeal.

III. Factual Background

The charges against Gonzalez all arose out of his conduct with J.F., who was born in March 1998. In June 2007, Gonzalez and J.F.s mother (mother) lived together in an apartment in Redwood City with J.F. and her younger sister. Mother was pregnant with Gonzalezs child.

On June 15, 2007, mother had some pregnancy complications. Gonzalez, accompanied by J.F. and her sister, took mother to Stanford Hospital, where she was admitted. Mother had made plans for a neighbor to care for the girls that evening, but Gonzalez took the sisters back to their apartment.

J.F. and her sister went to sleep in the bed they shared. J.F. woke up sometime that night when Gonzalez got in bed next to her. Her back was to him, and she felt his penis touching her back. The defense stipulated that during that incident, Gonzalez removed his penis from his pants and rubbed it up against [J.F.] it was . . . both between her buttocks and on her vagina underneath her clothing. It did not penetrate the vagina or the anus, but it was in the area of the genitalia and the buttocks [] [s]kin to skin.

The following day, J.F. told her mother she wanted to stay with her aunt in Los Angeles. Mother agreed, and the two sisters stayed with their aunt until the end of August 2007. Mother gave birth to a girl in August 2007. J.F. did not tell her mother about the June 2007 incident because Gonzalez told her he and her mother would go to jail.

Soon after the sisters returned, they began sleeping in the living room, and Gonzalez and mother slept in the bedroom. During the first few weeks J.F. was back at home, Gonzalez came to the living room during the night and touched her breasts and buttocks with his hands. There were about ten more incidents in which Gonzalez touched her, usually in the middle of the night. Sometimes he touched her with his penis on her vagina and buttocks. J.F. [t]ried to push him and pinch him, but Gonzalez didnt move. He stayed there. Gonzalez also tried to force his penis into J.F.s mouth, but his penis touched only the outside of her mouth because she kept her teeth clenched. She tried to get away from Gonzalez, and remembered pinching him on that occasion. J.F. also began wearing two pairs of pajamas, and trying to protect her sister by making her sleep closer to the wall in their bed.

J.F. told her mother about the incidents in the early autumn of 2008. She saw Gonzalez hugging my sister tight and thats when I started to cry because I started to feel that maybe he was doing something to my sister. Mother asked why she was crying, and J.F. told her only some of the stuff that Gonzalez had done, because J.F. didnt want her to cry. After Gonzalez went to work in the morning, J.F. told her mother more about what had happened. Mother informed their social worker, who called the police. The police interviewed J.F., and she underwent a physical exam.

On October 29, 2008, Detective Gregory Farley of the Redwood City Police Department arranged a pretext call from mother to Gonzalez, who was at their apartment at the time. Gonzalez was under surveillance by Redwood City Police Officer Brad Johnson, who was in cell phone contact with Detective Farley. Officer Johnson observed Gonzalez speaking on a cell phone. Johnson informed Detective Farley when the call concluded and he saw Gonzalez leave the apartment and head toward an automobile. Johnson believed the other officers would not get there in time, so he parked behind Gonzalezs car and identified himself as a police officer. Johnson asked if he was Gonzalez, and when he responded affirmatively, Johnson placed him in handcuffs for his safety and mine. Johnson told Gonzalez he was being detained, but was not under arrest.

Detectives Farley and Monte, a Spanish translator, arrived one to two minutes later. Detective Farley immediately told Johnson to remove the handcuffs from Gonzalez, which he did. Detective Farley identified himself, and told Gonzalez [t]heres been some allegations made against you and Id like a chance to talk to you about those. Gonzalez responded he would like to talk . . . about them, and agreed to come to the police department. Detective Farley asked if he would like a ride. Gonzalez said yes, and got in the patrol car. They arrived at the police station, and Gonzalez, who was still unhandcuffed, entered on his own.

Detective Farley told Gonzalez, through a Spanish interpreter, At any time you feel like leaving, you can get up and leave. He demonstrated to Gonzalez that the door was unlocked, and told him he was not under arrest. Gonzalez agreed he was at the police station voluntarily. When asked how he felt about being there, Gonzalez responded Oh fine, yes, its all right. I just have the problem that sometimes, uh, uh, well, that, I get stuck on words . . . all of a sudden, I get stuck on a word. He told Detective Farley he was being honest with him, and acknowledged he asked the police to bring him to the station. At one point during the interview, Detective Farley asked if he wanted to keep talking and Gonzalez responded, No, its all right.

Gonzalez, through a Spanish interpreter, described the different times he touched J.F. During an incident in August 2007, he described lying down with J.F., starting to feel a little . . . arousal, and pulling her pants down. He stroked her vagina and put his penis on her buttocks, but did not penetrate her anus. He also described four other incidents which occurred in the month before the interview, during which he touched J.F.s chest, vagina and anus with his hand. Gonzalez drew a line on his finger in pen to indicate how far his finger penetrated J.F.s anus. He also admitted touching her anus and vagina with his penis. He confirmed that J.F. pinched him, but claimed it was because he would not hug her.

After Gonzalez described these incidents, Detective Farley asked him: Do you remember when [we] told you that youre free to leave at any time? Gonzalez responded, Yes. I know. Detective Farley then told him, Ok, you are no longer free to leave. You are under arrest, ok? Gonzalez said Yes, thats fine, and Detective Monte read him his Miranda rights in Spanish. Gonzalez indicated he understood his rights. Detective Farley then questioned Gonzalez again, and Gonzalez provided essentially the same information as he had before his arrest.

IV. Discussion

Counsel vigorously and competently represented Gonzalez at all times, including filing a motion to suppress his statements to police. The trial court correctly denied the motion. In both the transcript and the videotape of his questioning, Gonzalez acknowledges he voluntarily came to the police station, and that he knew he was free to leave until he was arrested.Therefore, he was not yet detained, let alone under arrest. Gonzalez was interviewed with the assistance of a Spanish language interpreter. Immediately after he was placed under arrest, he was advised of his Miranda rights in Spanish, and he had the assistance of an interpreter at trial. Our review of the entire record, including the testimony of J.F. and her mother, and the videotaped interviews of Gonzalez, demonstrates that substantial evidence supports his conviction. The court did not err in allowing the testimony under the fresh complaint doctrine. (People v. Manning (2008) 165 Cal.App.4th 870, 879-881.) We conclude there are no meritorious issues to be argued or that require further briefing on appeal.

V. Disposition

The judgment is affirmed.

_________________________

Banke, J.

We concur:

_________________________

Marchiano, P. J.

_________________________

Margulies, J.

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[1]People v. Wende (1979) 25 Cal.3d 436; see also People v. Kelly (2006) 40 Cal.4th 106.

[2] All further statutory references are to the Penal Code unless otherwise indicated.