P. v. Meza
Filed 1/29/14 P. v. Meza
CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
RAFAEL MEZA,
Defendant and Appellant.
B247900
(Los
Angeles County
Super. Ct. No.
TA122526)
APPEAL
from a judgment of the Superior Court of
Los Angeles County, Eleanor J. Hunter, Judge. Affirmed as modified with directions.
William
L. McKinney and Vanessa Place, 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, Margaret E. Maxwell and Stephanie C. Santoro, Deputy
Attorneys General, for Plaintiff and Respondent.
Appellant
Rafael Meza was convicted of sex and
in violation of Penal Code
name="_ftnref1" title="">[1] section 288.7, subdivision
(a), continuous sexual abuse of a child in violation of section 288.5,
subdivision (a) and aggravated sexual assault of a child (sodomy) in violation
of section 269, subdivision (a)(3). The
trial court sentenced appellant to 65
years to life in prison, plus a determinate term of 16 years in prison.
Appellant
appeals, contending the trial court erred prejudicially in admitting his
interviews with police. Respondent
contends the abstract of judgment must be corrected to reflect appellant’s
actual conviction on count 4 and the correct number of days of presentence custody
credits. We correct the abstract of
judgment and affirm the conviction on all other grounds.
FACTS
Beginning
in August 2010, appellant sexually abused his step-daughter Alexia S. She was ten years old at the time. The abuse began one morning when someone
touched Alexia’s breast
under her clothing while she was asleep. Alexia woke up, but the person fled. Later, she asked appellant if he had been in
her room. He told her to sit on the sofa
next to him. He rubbed her thighs, laid
her on her back, took off her pants and underwear, took off his own pants and
inserted his penis into her vagina.
Alexia cried and begged him to stop.
Appellant stopped after a couple of minutes. He said that he was sorry and would not do it
again. Later that month, appellant again
sexually assaulted Alexia on the sofa, inserting his penis into her
vagina. Afterwards, he again promised
not to repeat the behavior.
Nevertheless, appellant did repeat the behavior once a week during the
summer. The sexual abuse continued after
Alexia went back to school. On one
occasion, appellant forced Alexia to orally copulate him.
After
Alexia turned 11, in April, 2011, appellant began inserting his penis into her
anus. This occurred in the living
room. If Alexia seemed reluctant to
comply, appellant would show her his belt.
This happened two or three times a week.
On
Friday, March
16, 2012, appellant picked up Alexia and
her brothers at school. He asked Alexia if she was going to “give it to him.†She ignored him. When they reached the house, appellant put the
boys in the bedroom, went to the living room, and forcibly inserted his penis
into Alexia’s anus. Appellant later
apologized, but Alexia did not believe him.
She knew it would happen again.
On
Monday, March 19, Alexia, wrote a note to a friend which stated, “My mom’s
husband sexually abused me.†The friend
told a teacher about the note. The
teacher spoke with Alexia, who confirmed that appellant had sexually abused
her. Alexia then went to the principal’s
office and told the principal that appellant had sexually and physically abused
her. The principal saw yellowish
bruising on Alexia’s back, and called Alexia’s mother, Martha.
Martha
came to Alexia’s school. She was shocked
to learn of appellant’s sexual abuse of Alexia.
Martha took Alexia to the emergency room, where she was examined by a
nurse specializing in forensics. Alexia
gave the nurse an account of sexual abuse by appellant which was consistent
with her trial testimony. The nurse
observed a fully healed transection of the hymen which indicated previous
penetrating trauma. This trauma was
consistent with a penis entering the vagina.
It was not consistent with digital penetration. No injuries were observed to Alexia’s
anus. The anus can accommodate
penetration and heals quickly. The lack
of an anal injury did not contradict Alexia’s account of abuse.
Los
Angeles County Sheriff’s Deputy Cristina Cordova interviewed Alexia at the
hospital. Alexia was withdrawn and
crying. Alexia’s description of
appellant’s abuse was generally consistent with her trial testimony.
While
Alexia was at the hospital, appellant called Martha. Martha said that Alexia fainted at school
because she was dehydrated and she needed intravenous fluids.
Sergeant
Paul Valle, then a detective in the Sheriff’s Department’s Special Bureau,
interviewed Alexia at the district attorney’s office. Alexia was sad and broke down into
tears. She told him what appellant had
done to her.
Appellant
was arrested. Sergeant Valle interviewed
appellant twice on March 20, 2012, while appellant
was in custody. Sergeant Valle did not
advise appellant of his Miranda
rights before the first interview. He
did do so before the second interview.
Both interviews were ultimately admitted at trial. In both interviews, appellant admitted that
he rubbed his penis against Alexia’s anus or vagina on three or four occasions
after she turned 11. He denied ever
penetrating her. A recording of the
second interview was played for the jury.
Appellant
testified on his own behalf at trial, and denied ever rubbing his penis against
Alexia. He denied any form of sexual
abuse. Appellant claimed that he was
pressured into making the statements about rubbing by Sergeant Valle. Appellant also testified that he and Alexia
did not have a good relationship.
Appellant’s
brother and his sister-in-law both testified at trial that Martha told them
that Alexia had complained to her about appellant’s sexual abuse. Both testified that Martha said she did not
believe Alexia.
Appellant’s
mother testified that on four occasions in 2009 she saw Alexia looking through
the keyhole into appellant’s and Martha’s bedroom in the middle of the
night. Appellant’s stepfather testified
that in 2009 or 2010, he saw Alexia watching pornography on television on three
occasions.
In
rebuttal, Sergeant Valle testified about the circumstances of his interviews
with appellant. A recording of the first
interview was played for the jury.
>
DISCUSSION
1. Appellant’s confessions
After
appellant was taken into custody, he was interviewed by Sergeant Valle at the
Central Regional Detention Facility. The
sergeant did not read appellant his rights under Miranda. Appellant made incriminating statements. Sergeant Valle left the interview room,
returned, told appellant his DNA sample was going to be taken, asked if
appellant had any messages for his wife or the victim and left the room. After 30 to 45 minutes, Sergeant Valle
interviewed appellant in a different room.
This interview began with the sergeant reading appellant his
waived. Appellant again made
incriminating statements.
Appellant
moved to exclude both interviews with police.
Appellant contended that his first interview should be suppressed
because he was not advised of his Miranda
rights, and the second interview should be suppressed because the police
deliberately used a two-step process to circumvent Miranda. He also claimed the
admissions made in both interviews were involuntary.
The court denied
appellant’s motion as to the second interview, finding that Sergeant Valle did
not use a deliberate two-step process to circumvent Miranda. The court found
appellant’s statements were voluntary.
Although the first statement was voluntary, the court ruled that “[t]he
first statement, because it wasn’t Mirandized,
that wasn’t going to come in.†Later,
appellant moved to admit the first interview to give context to the second
interview, which was admitted during the prosecution’s case-in-chief. Before the court ruled on this request, the
prosecutor stated that it would use the first interview in rebuttal.
Appellant
contends the trial court erred in admitting both statements to the sergeant.
a. Applicable law
The
United States Supreme Court has twice considered the admissibility of a “secondâ€
confession made after the suspect has received a Miranda warning and also after the suspect has made an earlier
unwarned confession. (
600.) These are often called “midstreamâ€
Miranda cases.
In
Elstad, the Court explained that “absent
deliberately coercive or improper tactics in obtaining the initial statement,
the mere fact that a suspect has made an unwarned admission does not warrant a
presumption of compulsion†concerning the second, postwarning confession. (Oregon
v. Elstad, supra, 470 U.S. at p. 314.)
A “suspect who has once responded to unwarned yet uncoercive questioning
is not thereby disabled from waiving his rights and confessing after he has
been given the requisite Miranda
warnings.†(Id. at p. 318.) A “careful
and thorough†midstream warning “ordinarily should suffice to remove the
conditions that precluded admission of the earlier statement.†(Id.
at pp. 310, 314.) In such circumstances,
“the suspect’s choice whether to exercise his privilege to remain silent should
ordinarily be viewed as ‘an act of free will.’
[Citation.]†(
In
Seibert, the Court considered the
situation where a midstream Miranda
warning was given as part of deliberate two-step interrogation technique
designed to circumvent the protections of Miranda.
(Missouri
v. Seibert, supra, 542 U.S.
600.) Seibert is a plurality opinion, with the narrowest opinion being
written by Justice Kennedy. “[B]oth the
plurality and Justice Kennedy agree that where law enforcement officers
interrogation to obtain a confession and where separations of time and
circumstance and additional curative warning are absent or fail to apprise a
of his rights, the trial court should suppress the confession.†(
was not deliberately employed, Elstad
continues to govern the admissibility of postwarning statements. [Citations.]â€
(U.S. v. Williams, supra, 435
F.3d at p. 1158.)
Factors
which should be considered in determining whether an interrogator used a
deliberate two-step strategy include subjective evidence such as the officer’s
testimony and objective evidence such as “the timing, setting and completeness
of the prewarning interrogation, the continuity of police personnel and the
overlapping content of the pre- and postwarning statements.†(People
v. Camino, supra, 188 Cal.App.4th at p. 1370.)
“[T]he
trial court’s determination of deliberateness is a factual finding entitled to
deference. . . . California reviewing courts are bound by the trial court’s factual
findings if supported by substantial
evidence (as compared to the clear error standard applicable in federal
courts), and we must accord ‘“‘“great weightâ€â€™â€â€™ to the trial court’s
conclusions. [Citation].†(
at p. 1372.)
“[W]here the
court finds deliberateness to be absent, ‘the admissibility of post-warning
statements should continue to be governed by the principles of
Id. at p. 622, 124 S.Ct. 2601 (Kennedy, J., concurring in the
judgment).†(U.S. v. Williams, supra, 435 F.3d at p. 1161.)
b. The court’s finding of lack of deliberateness
is supported by substantial evidence
The
trial court considered both objective and subjective factors in reaching its
conclusion that Sergeant Valle did not deliberately delay giving a
The
court found that there were two interviews, an objective fact which weighs
against a finding of deliberateness.
This finding is supported by substantial evidence. The court found the first interview ended almost
immediately after Sergeant Valle told appellant his DNA sample would be taken. The sergeant then asked appellant if there
was anything appellant wanted him to tell appellant’s wife, a question which
signaled the end of the interview. The sergeant
left after confirming appellant’s message to his family. The court found credible Sergeant Valle’s
testimony that he left the jail, drove onto the freeway, realized he had
forgotten to Mirandize appellant, and
then returned to the jail. The court
also found that in the sergeant’s absence, appellant had been moved in order to
be put back into his cell. Thirty to
forty minutes elapsed before Sergeant Valle spoke with appellant again, and
this interview took place in a different interview room.
The court found
credible Sergeant Valle’s testimony that he did not employ “any type of two
step process†but simply forgot to give the Miranda
warnings and realized his mistake only when he was on the freeway. This is a subjective factor which supports a
finding of lack of deliberateness. Sergeant
Valle also testified that he had only forgotten to give a Miranda warning a few times in his career and that the Sheriff’s
Department did not have a policy of deliberately delaying Miranda warnings. These
statements also support a finding of lack of deliberateness.
The only
possible factors which weighed in favor of a finding of deliberateness were the
continuity of personnel and the overlap in content between the two
interviews. The overlap in content was
not significant, as Sergeant Valle brought in new topics as well in the second
interview, such as the type of underwear appellant wore, appellant’s phone
calls with his wife discussing the victim’s hospital visit, and whether
appellant had considered going to a prostitute.
We defer to the trial court’s implied finding that the factors showing
no deliberateness outweighed these two minor factors. (See People
v. Camino, supra, 188 Cal.App.4th
at p. 1372.)
c. Appellant’s first
confession was voluntary
Since Sergeant
Valle did not deliberately delay appellant’s Miranda warning, the admissibility of appellant’s second statement
is analyzed under Elstad v. Oregon,
supra, 470 U.S. 298. (
p.1158.)
The first step
in an Elstad analysis is determining
the voluntariness of the first, unwarned confession. Here, the trial court found that both of
appellant’s interviews were voluntary.
“Under both
state and federal law, courts apply a ‘totality of circumstances’ test to
determine the voluntariness of a confession. [Citations.] Among the factors to be considered 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.â€â€™ [Citation.] On appeal,
the trial court’s findings as to the circumstances surrounding the confession
are upheld if supported by substantial evidence, but the trial court’s finding
as to the voluntariness of the confession is subject to independent review. [Citations.] In determining whether a confession was
voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially
free†because his will was overborne.’ [Citation.]â€
(People
v. Massie (1998) 19 Cal.4th 550, 576.)
After
an independent review of the record, we agree with the trial court that, under
the totality of circumstances, both of defendant’s confessions were voluntary.
The interviews
were not lengthy. The first interview
resulted in 71 pages of transcript.
Appellant estimates that it lasted 90 minutes. The second interview was half the length of
the first. Appellant was in his thirties
and had prior experience with police interviews, and even referred to those
prior interviews during the current interviews.
There is nothing to indicate that appellant had any mental health
issues, language difficulties or comprehension problems. These factors all weigh in favor of
voluntariness. The interview took place
in jail, which weighs slightly against voluntariness. Sergeant Valle used some ploys, which also
weighs against voluntariness.
name="_ftnref3" title="">[3]
Appellant
contends that his first unwarned confession was not voluntary because Sergeant
Valle engaged in a “protracted series of interrogation tactics†which were
intended to, and did, elicit an incriminating response. He contends that “these tactics have been
found to be, under all the circumstances, ‘so coercive that they tend to
produce a statement that is both involuntary and unreliable.’ [Citation.]â€
It was
undisputed that Sergeant Valle’s questioning during the first interview was “interrogationâ€
and was designed to elicit an incriminating response from appellant. The record confirms that Sergeant Valle did
use a variety of interrogation tactics.
None of the
tactics used by Sergeant Valle was inherently coercive. Some of the tactics can be employed in a
coercive manner which will render a subsequent confession involuntary. None of those tactics was employed in such a
manner in this case.
i. Rapport building
Appellant complains
that Sergeant Valle engaged in improper and coercive rapport building.
It is not “inherently
coercive for an interrogator to attempt to form a rapport with the suspect.†(People
v. Williams (2010) 49 Cal.4th 405, 447.)
Appellant points out, correctly, that rapport building can be coercive
under some circumstances. (
150, 159-161.) In Honeycutt, one of the arresting officers had known the suspect for
ten years and during the initial portion of the interrogation, the officer “discussed
unrelated past events and former acquaintances.†(Id.
at p. 158.) The officer also disparaged
the victim. (Ibid. ) Further, the
officers apparently engaged in a “Mutt and Jeff†routine where one officer is
hostile and aggressive, then leaves and the second officer “seeks to gain [the
suspect’s] confidence by disapproving his partner’s behavior.†(Id.
at p. 160, fn. 5.)
Those
circumstances are not present here. Sergeant
Valle did not have a prior acquaintance with appellant, and so could not
discuss common past events or acquaintances to ingratiate himself with
appellant. Although Sergeant Valle was
sometimes sympathetic and sometimes accusatory during the interview, he was the
only interviewing officer and could not gain appellant’s confidence by engaging
in a “Mutt and Jeff†routine and disapproving of his own behavior. We do not understand the sergeant’s statement
that the victim looked like a teenager to be a disparaging remark, particularly
since at the time of the interview Alexia was just one year shy of being a
teenager. Asking if the victim “came onâ€
to appellant or was “flirtatious†were questions, not accusations. Even suggesting that the victim was a little “flirtatiousâ€
is not disparaging. Thus, appellant’s
reliance on People v. Honeycutt, supra,
20 Cal.3d 150 is misplaced. (See
478 [reliance on Honeycutt misplaced
because there was no prior relationship between officer and suspect and no
victim disparagement].)
ii. Exhortations to tell the truth
Appellant
contends that Sergeant Valle was coercive when he exhorted appellant to tell
the truth. General exhortations to a
suspect to tell the truth are permissible.
(People v. Tully (2012) 54
Cal.4th 952, 993.) They can be improper
if accompanied by a promise of leniency in exchange for telling the truth. (Ibid.) Appellant has not identified, and we have not
found, any instances of Sergeant Valle promising appellant leniency in exchange
for the truth. Further, appellant acknowledged
he knew the sergeant was not going to help him.
iii. Bluffing
Appellant
contends that Sergeant Valle lied to him by saying that his DNA had been found
on or in the victim’s anus. Appellant is
correct that the sergeant made this false statement.
The general rule
is that a confession or admission obtained by subterfuge or deceit may
nevertheless be admissible, so long as the subterfuge or deceit is not a type
that is reasonably likely to produce a false statement. (People
v. Williams, supra, 49 Cal.4th at p. 433.)
Here, it is clear that the mention of the DNA did not overcome appellant’s
will.
Sergeant Valle
stated appellant’s DNA had been found on the victim, and implied that the DNA
had come from inside the victim’s anus and was recent. Sergeant Valle suggested repeatedly that
something had happened the previous Friday, but appellant was adamant that it had not. Sergeant Valle asked appellant repeatedly if
he had penetrated the victim. Even after
appellant admitted to rubbing up against the victim with his penis, he denied
penetrating her. He suggested that maybe
the victim acquired his DNA by touching something in the shower or by sitting
on the couch after appellant had masturbated there in the past. He denied that the rubbing would have left his
DNA on the victim. (See
p. 444 [“Significantly, . . . defendant
did not incriminate himself as a result of the officer’s remarks.â€].)
Further,
appellant resisted making any incriminating statements for a considerable
period of time. When he did make an
incriminating statement, it followed Sergeant Valle’s description of the victim’s
suffering and an exhortation to help the victim by admitting what had
happened. Appellant’s admissions began
with the statement that the victim “deserves better.†If anything, it was the references to the
victim’s unhappiness which motivated appellant.
Even then, he admitted only to committing lewd acts, minor crimes
compared to the charges of rape and sodomy.
(See People v. Coffman &
Marlow (2004) 34 Cal.4th 1, 58 [defendant’s “resistance, far from
reflecting a will overborne by official coercion, suggests instead a still
operative ability to calculate his self-interest in choosing whether to
disclose or withhold information.â€].)
iv. Other tactics
Appellant also
complains that throughout the interview, Sergeant Valle used innocuous
questions, accusations, arguments that confession has healing powers,
exhortations to “be a man,†minimization of the charges and of appellant’s
responsibility for the crimes and requests for information as interrogation
tactics, which were intended to and did elicit in incriminating response. He further complains that these tactics “have
been found to be, under all the circumstances, ‘so coercive that the they tend
to produce a statement that is both involuntary and unreliable.’ (People
v. Williams[, supra,] 49 Cal.4th [at
p.] 443 . . . .)â€
Appellant has
taken a partial quote out of context.
The Court in Williams stated, “‘“The
courts have prohibited only those psychological ploys which, under all the
circumstances, are so coercive that they tend to produce a statement that is
both involuntary and unreliable.â€â€™â€ (
None of the
above listed tactics is inherently so coercive as to render any incriminating
statement during an interview involuntary and unreliable. Appellant has not made a showing that the
above listed tactics were “so coercive†under the circumstances of this case as
to tend to produce an involuntary statement.
d. Appellant’s second, Mirandized confession was admissible
As we have discussed,
appellant’s statements in his second interview were voluntary. Sergeant Valle fully and correctly informed
appellant of his Miranda rights and
appellant waived those rights before that second interview. Under
“[A]bsent
deliberately coercive or improper tactics in obtaining the initial statement,
the mere fact that a suspect has made an unwarned admission does not warrant a
presumption of compulsion. A subsequent
administration of Miranda warnings to
a suspect who has given a voluntary but unwarned statement ordinarily should
suffice to remove the conditions that precluded admission of the earlier
statement. In such circumstances, the
finder of fact may reasonably conclude that the suspect made a rational and
intelligent choice whether to waive or invoke his rights.†(Oregon
v. Elstad, supra, 470 U.S. at p. 314.)
Appellant has
not identified any facts showing that his circumstances are not ordinary and
require a departure from the general rule. To the extent that appellant contends that he
was unable to give a fully informed waiver of his rights because he was unaware
that his prior statement could not be used against him, appellant is mistaken. There is no requirement that an officer give a
warning concerning limitations on the use of the earlier statement in addition
to the standard Miranda warnings. “Such a requirement is neither practicable nor
constitutionally necessary.†(
316.) “Police officers are ill-equipped
to pinch-hit for counsel, construing the murky and difficult questions of when ‘custody’
begins or whether a given unwarned statement will ultimately be held
admissible. [Citation.]†(Id.
at p. 316.)
e. Appellant’s first
confession was also admissible for impeachment
As we have
discussed, appellant’s first confession, although unwarned, was otherwise
voluntary. The prosecution used the
interview during its rebuttal case.
name="_ftnref4" title="">[4]
Generally,
voluntarily given statements obtained in violation of Miranda are admissible to impeach a defendant’s trial
testimony. (Harris v. New York (1971) 401 U.S. 222, 224; People v. Peevy
(1998) 17 Cal.4th 1184, 1193.)
Here, appellant
testified at trial and denied molesting the victim in any way. He claimed that he only made the
incriminating statement in the second interview because Sergeant Valle
pressured him, threatened him with the loss of his family, and promised
leniency. He also claimed that Sergeant
Valle screamed at him and hit the table, and he was afraid the sergeant was
going to hit him. Thus, the contents of
the first interview were relevant to impeach appellant.
Appellant has
not explained why his first statement should be treated differently than the
norm, and has cited no cases requiring exclusion of a voluntarily given but
unwarned statement in circumstances similar to those in this case. Accordingly, his claim fails.
2. Abstract of judgment
The abstract of
judgment shows that appellant was convicted in count 4 of violating section
288.7, subdivision (a). Count 4 of the
information charged appellant with a violation of section 269, subdivision
(a)(3). The jury convicted appellant of
that charge. The abstract of judgment
must be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
The trial court
awarded appellant 373 days of actual custody and 57 days of custody credit for
a total of 430 days. Appellant was
arrested on March
20, 2012 and sentenced on April 2, 2013. Thus, he served 378 days of
actual custody. He is entitled to 56
days of custody credit, for a total of 434 days of presentence credit.
DISPOSITION
The abstract of
judgment is ordered corrected to show that appellant was convicted in count 4
of aggravated sexual assault of a child (sodomy) in violation of section 269,
subdivision (a)(3). The abstract is also
ordered corrected to show that appellant has 378 days of actual custody, 56
days of custody credit and 434 total days or presentence credits. The clerk of the superior court is directed
to prepare an amended abstract of
judgment reflecting these corrections and
to deliver a copy to the Department of Corrections and Rehabilitation. We affirm the judgment of conviction in all
other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MINK,
J.
We concur:
TURNER,
P. J.
MOSK, J.
indicated, all further statutory references are to the Penal Code.
