P. v. Benitez

Filed 12/30/08 P. v. Benitez CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Luis Enrique Benitez was convicted by a jury of continuous sexual abuse of a child under the age of 14 (Pen. Code,  288.5, subd. (a)), and sentenced to the midterm of 12 years in state prison. His sole contention on appeal is that the trial court erred in not appointing an interpreter for him. We affirm.

BACKGROUND

By information filed on December 29, 2005, defendant was charged with a felony, continuous sexual abuse, a violation of Penal Code section 288.5, subdivision (a). The information specifically charged that between January 1, 2002, and August 16, 2005, . . . defendant[] did unlawfully engage in three or more acts of substantial sexual conduct, as defined in Penal Code section 1203.066(b), and three and more acts in violation of [Penal Code] section 288 with Samantha Doe, a child under the age of 14 years, while the defendant resided with, and had recurring access to, the child. Samantha Doe was one of three daughters of T.C., who was identified at trial as defendants girlfriend and at whose house defendant frequently stayed,[1] as often as twice a week.

As noted, a jury convicted defendant of the charge, and defendant does not assert that the conviction is not supported by substantial evidence. Thus the details of the crime need not be set forth here. Suffice to say that Samantha testified about numerous occasions when defendant would come into her bedroom, lie down on her bed, and molest her in various ways. The incidents began when Samantha was nine or 10 and continued until she was 13. Samantha estimated that she awakened to find defendant touching her breasts more than 20 times, and that he also touched her vaginal area more than 20 times.

The abuse came to light when Samantha was caught by T.C. attempting to sneak out of the house; following a confrontation, Samantha broke down and told T.C. what defendant had been doing to her. T.C. reported this to the police who, following an interview with Samantha, set up a pretext phone call to defendant. The call was recorded and played for the jury, and a transcript of it was introduced in evidence (exhibit 1).

Following three days of testimony, the jury convicted defendant, and the court sentenced him to 12 years in state prison. Defendants original notice of appeal was not timely filed, but on July 13, 2007, we ordered that defendant be allowed to file a late notice of appeal.

SUMMARY OF DEFENDANTS POSITION

Defendants opening brief has a section headed Argument, but no specific argument is set forth. Thus we could conclude that any argument is forfeited. (See People v. Stanley (1995) 10 Cal.4th 764, 793; Cal. Rules of Court, rule 8.204(a)(1)(B).) In any event, defendants argument fails on the merits.

As best we understand it, defendants position is that some statements made by defense counsel were sufficient to put the trial court on notice that it had a duty to inquire as to the necessity of an interpreter. Or, as defendants opening brief later states it, [t]he trial courts error in this case centers on its failure to inquire directly of appellant as to whether or not an interpreter was required at trial. The indications that appellant indeed required an interpreter were sufficient to put the court on notice of appellants language difficulties; and it failed its duty when it [sic] inquiry stopped at trial counsel, whose representations should have at the minimum triggered further questions directly of appellant, if not the order to supply an interpreter.

Such argument, we conclude, manifests a complete disregard of the record here, most particularly the 15 pages of colloquy discussing the subject of whether defendant needed, or wanted, an interpreter15 pages of colloquy not even mentioned, let alone discussed, in appellants opening brief.

ANALYSIS

1. The Law

Since 1974, Article 1, section 14 of the California Constitution has provided that [a] person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings. Our Supreme Court has held that this provision means that a defendant has the right to an interpreters assistanceif he is unable to understand English.  (People v. Alvarez (1996) 14 Cal.4th 155, 209.)

A defendants constitutional right to an interpreter arises only when the defendant affirmatively shows the need for an interpreter. (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1453.) Prior to the 1974 passage of the referenced constitutional provision, it was recognized that trial courts had broad discretion to determine whether the defendants comprehension of English was minimal enough to render an interpreter necessary. And nothing in the constitutional provision changes this well established requirement of a finding of necessity by the trial court. (People v. Carreon (1984) 151 Cal.App.3d 559, 566-567, and cases there collected.)

Those are the rules governing in the trial court. The rule governing here is this: When evaluating a determination as to the necessity of appointing an interpreter, the policy of upholding a lower courts decision based upon informed discretion is strong. The trial judge is in a unique position to evaluate the reactions and responses of the accused and to determine whether he or she does not require an interpreter in order to be adequately understood or in order to adequately understand the proceedings. This exercise of discretion should not be reversed unless there is a complete lack of any evidence in the record that the accused does understand English, thereby rendering the decision totally arbitrary. (In re Raymundo B., supra, 203 Cal.App.3d at p. 1456.) Defendant makes no showing of any abuse of discretion here, not by a long shot.

2. The Proceedings Below

The first court appearance reflected in the record is the preliminary examination, held on December 16, 2005.[2] Defendant, of course, was present, and there was no indication that he did not understand English. And there was no request for any interpreter.

In the ensuing months leading to the September 6, 2006 trial, there were no fewer than six court proceedings, with defendant present on at least four of them. Again, there was no indication at any of the hearings that defendant did not understand English. Again, no discussion of any claimed need for an interpreter. That was the background up to the hearing on the motions in limine, which gave rise to the extensive colloquy referred to above and discussed in detail below.

We end the discussion of the pretrial background by noting that not only were all pretrial proceedings absolutely silent about any claimed inability to understand English, defendants own suggested jury interrogatories confirmed that there was no problem. There, in questions suggested by defendant to be asked prospective jurors, is a heading entitled Attitudes towards black Americans/Latinos/non-English speaking, undocumented aliens, etc. Under that heading there is nothing whatsoever to be asked about language difficulty. In short, at no time, in any proceeding, in any way, was there even a hint that defendant was unable to understand English. And it was all confirmed in spades at the hearing on the motions in limine, where Judge McLaughlin engaged in a thorough and thoughtfulindeed, painstakingexamination of the question whether defendant needed an interpreter.

The question arose, as noted, in an argument on in limine motions, one of which involved the inadmissibility of the pretext telephone call. Mr. Hyatt, counsel for defendant, first objected that the call lacked foundation and is hearsay. Then, asked a question by the court, counsel went on: In that regard, part of the problem that I have with the pretext phone call . . . or his response or nonresponse constitutes an adoptive admission, theres the problem of, one, the time and place of the phone call where Mr. Benitez was when he received the phone call, his ability to perceive and hear and respond to the questions, and his ability to be understood when he responded to the questions and to understand the question that was asked. Although he does speak English, he respondshe hashe has a dialect andthat is somewhat difficult to understand.

Judge McLaughlin remarked that . . . this is the first time since you arrived here on June the 8th that Ive heard that comment. Are you telling me right now that there is no possibility of this defendant testifying in front of the jury? This led to the extensive colloquy alluded to above, which began as follows:

THE COURT: You have decided he is not going to testify?

[DEFENSE COUNSEL]: I have not decided that at all. Im just saying that when he speaks, he has an accent that you have to kind of develop an ear for.

THE COURT: How is it that you think the jury will develop an ear for his accent?

[DEFENSE COUNSEL]: Hes perfectly understandable. Im not saying hes not understandable. Im only making these comments as it relates to the context of the phone call.

THE COURT: Im looking at it from an entirely different direction. I want to know if you decide to have the defendant testify whether or not he needs a Spanish interpreter.

[DEFENSE COUNSEL]: He does not.

THE COURT: He has the right to a Spanish interpreter if he wishes to testify and we will supply him with one. [] . . . [] But hes never had one through any of the proceedings in this courtroom.

[DEFENSE COUNSEL]: Nor am I seeing that he needs one.

Judge McLaughlin then turned to question defendant directly:

THE COURT: Mr. Benitez, do you understand what Im saying?

THE DEFENDANT: Yes.

THE COURT: Do you understand English well?

THE DEFENDANT: I understand, but sometimes I got problems with the words.

Judge McLaughlin then spent several pages in the record asking defendant to describe instances in which he did not understand, and defendant indicated that sometimes he had difficulty understanding some words. Judge McLaughlin probed further, and this ensued:

THE COURT: Okay. From the first day you came into a courtroom up until today, have you ever had an interpreter?

THE DEFENDANT: No.

THE COURT: Have you ever felt that you need an interpreter?

THE DEFENDANT: Yes.

THE COURT: What was it, if you remember, what was it that happened that made you think you need an interpreter?

THE DEFENDANT: Because I want to be clear in everything because I dont understand some things going to be difficult. [] . . . [] 

THE COURT: Do you think that you ever need an interpreter to understand what was being said to you?

THE DEFENDANT: No.

THE COURT: You have the right to have a Spanish interpreter present and to interpret from English into Spanish for you if you believe you need one to understand the proceedings. Do you understand that?

THE DEFENDANT: If I understand the proceedings.

THE COURT: Do you understand what I just said?

THE DEFENDANT: Yeah.

THE COURT: What did I say?

THE DEFENDANT: If I need an interpreter to to understand the procedures. See, thats my problem right there.

THE COURT: The proceedings.

THE DEFENDANT: Yeah, proceedings.

THE COURT: You know what I mean when I say proceedings?

THE DEFENDANT: Like the statements, something like that?

THE COURT: Actually, what it means in this case is just whats going on, the proceedings around you.

THE DEFENDANT: Yeah.

THE COURT: If you dont understand English well enough to understand what is being said in the courtroom, you have the right to an interpreter so that you can understand. Do you understand that?

THE DEFENDANT: Yeah.

Judge McLaughlin then diligently satisfied himself, out of defendants own mouth, that defendant talked to his lawyer in English and pretty much understood what his lawyer says. Following that, Judge McLaughlin and counsel had an unreported conference in chambers. Judge McLaughlin retook the bench and this followed:

THE COURT: All right. Were back on the record in People versus Benitez. Both counsel and defendant are present. I had asked, in an in-chambers conversation with Mr. Hyatt and Miss Hilton [the prosecutor], asked Mr. Hyatt to explain to Mr. Benitez the purpose of my asking these questions.

It has nothing to do with your own personal background, but I am required to determine if you understand what were doing here in the courtroom.

Do you understand that, Mr. Benitez?

THE DEFENDANT: Yes.

THE COURT: All right. Now, as far as the lawyers know, and as far as I know, you have never asked for an interpreter since this case has begun; is that correct?

THE DEFENDANT: Thats correct.

THE COURT: All right. And I am listening to you and I understand you quite well. I have no difficulty understanding. If I understand what you told me before, you say that sometimes you have difficulty picking the right word in English to be understood

THE DEFENDANT: Yes.

THE COURT: but that sometimes you also hear words in English you do not understand.

THE DEFENDANT: Yes.

THE COURT: All right. Now, its mid-afternoon today. Can you give me any idea of how many words I have used today that you did not understand?

THE DEFENDANT: I think just that one that you say.

THE COURT: Just the one word?

THE DEFENDANT: Yeah.

THE COURT: Do you feel that you have understood most of what I have said when weve been in court?

THE DEFENDANT: Yes.

THE COURT: All right. Do you have any feelinghave you ever been confused about what it is I have been saying in this courtroom?

THE DEFENDANT: Not really, not right now.

THE COURT: All right. Have you ever been confused about what the District Attorney has been saying in the courtroom?

THE DEFENDANT: No.

THE COURT: Have you ever been confused about anything your own lawyer has said to you while youve been in my courtroom?

THE DEFENDANT: No.

THE COURT: Okay. Are you comfortabledo you understand the word comfortable?

THE DEFENDANT: Yes.

THE COURT: Are you comfortable going ahead with this trial without an interpreter?

THE DEFENDANT: Pretty much.

THE COURT: What does that mean?

THE DEFENDANT: See, like I say before, itsI understand almost everything, but sometimes a word that I dont understand, and right there is what I want to be careful because, you know, I dont want to make mistakes.

THE COURT: You mean someone speaks a word in English that you dont understand?

THE DEFENDANT: Yes.

THE COURT: . . . Can you give me some idea of how many words that have been used today you didnt understand?

THE DEFENDANT: Just that one.

THE COURT: Just one?

THE DEFENDANT: Yeah.

THE COURT: What about yesterday? You were here for some proceedings or some courtroom matters yesterday morning. How many words were there then that you did not understand?

THE DEFENDANT: I understand almost everything.

THE COURT: You understood almost everything?

THE DEFENDANT: Yeah.

THE COURT: The words you did not understand, there was only one word?

THE DEFENDANT: Yeah.

Then, after some probing about words, Judge McLaughlin asked:

THE COURT: I see. Do you need to have an interpreter speaking Spanish to you through the entire proceeding in order to understand it?

THE DEFENDANT: Its just gonna be like we are talking right now. I dont think I need it.

Judge McLaughlin pressed on, and asked defendant more specific questions about words, and received defendants assurance that if he did not understand a word he will ask his lawyer. Judge McLaughlins thorough efforts ended with this:

THE COURT: You would? Now, if you dont understand English, you have the right to an interpreter to help you understand these proceedings, these courtroom proceedings. The interpreter would speak Spanish to you and you would speak Spanish to the interpreter. But if the problem is just you dont know a lot of words, then that may be something that the interpreter couldnt help you with, but only you can tell me.

THE DEFENDANT: Yeah.

THE COURT: Do you need an interpreter to understand this trial?

THE DEFENDANT: No, I dont think so.

THE COURT: All right. If you wanted an interpreter I could appoint one and it would be free, you wouldnt have to pay for it. Do you understand that?

THE DEFENDANT: Yes, I understand that.

THE COURT: The interpreter would sit next to you during the entire trial, translate everything from English into Spanish and then when you spoke you would speak Spanish and the interpreter would interpret it into English. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Do you want an interpreter?

THE DEFENDANT: No, I dont think so.

And defendant went on to confirm:

THE DEFENDANT: . . . See, the problem is its I dont have a problem to understand. My problem is, like I say before, sometime I cant pronounce very well, you know, the words.

THE COURT: Right.

THE DEFENDANT: But almost 90 percent I do

THE COURT: Okay.

THE DEFENDANT: you know. Thats the only problem, but I understand everything.

THE COURT: Okay. Very well.

Then, after brief questioning of the district attorney, Judge McLaughlin concluded the extensive colloquy with this:

THE COURT: Well, I think what I would ask instead is do you, Mr. Hyatt, understand the defendants right to an interpreter? Is that correct?

[DEFENSE COUNSEL]: I do.

THE COURT: And if the defendant needed an interpreter in order to testify to make himself understood to the jury, you know, that you could request one, correct?

[DEFENSE COUNSEL]: I do.

THE COURT: To the extent that theres a tactical decision involved as to whether or not to request an interpreter for the limited purpose of testimony, that would be a decision that you would speak with your client about, I assume.

[DEFENSE COUNSEL]: And we have, to some extent, already.

THE COURT: Very well. And are you able to offer him advice as to whether or not to request an interpreter for the limited purpose of testifying?

[DEFENSE COUNSEL]: Well, we have not discussed that in depth. In fact, I did not want to give him my opinion before the court voir dired him and came to its own conclusion. I did not want to influence what his responses to the courtI wanted to give his best response and decide what was best for him without my influence, but now that we are at this point I think I can further discuss that with him.

THE COURT: All right. My concern is only that you understand, Mr. Benitez, that you have the right to an interpreter so that you understand these proceedings.

Do you understand that?

THE DEFENDANT: Yes.

THE COURT: That interpreter would be free of charge to you; do you understand that?

THE DEFENDANT: Yes.

THE COURT: You could have that interpreter appointed for your use during the entire trial if I believe that you needed that interpreter to understand the trial.

Do you understand that?

THE DEFENDANT: Yes.

THE COURT: You could also request that the interpreter be appointed for you for the limited purpose of interpreting your testimony if you persuade me that you need an interpreter for that purpose.

Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And theres a decision that you can make personally.

Do you understand that?

THE DEFENDANT: Yes.

THE COURT: That you may wish to talk with your lawyer about what he recommends to get his advice.

Do you understand that?

THE DEFENDANT: Yes.

THE COURT: But that the final decision is yours.

THE DEFENDANT: Mine, yeah.

THE COURT: Do you understand that?

THE DEFENDANT: Yeah.

THE COURT: And that means youre free to disagree with your attorney if you want.

THE DEFENDANT: Okay.

THE COURT: Do you understand that?

THE DEFENDANT: Yeah.

THE COURT: But that unless you personally request an interpreter, Im not going to grant you one.

Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Is there anything else you want to tell me on this subject?

THE DEFENDANT: No, thats okay. Im clear.

THE COURT: Okay. Anything else from you, Mr. Hyatt, on this?

[DEFENSE COUNSEL]: I dont believe so, Your Honor.

THE COURT: Anything, Miss Hilton?

[PROSECUTOR]: No.

THE COURT: All right. I think the record is clear, but I will state for the record my own impressions and that is, first of all, although Mr. Benitez has a slight accent, it is quite understandable to me. I personally dont think that any juror whos been in California an appreciable amount of time will have any trouble understanding Mr. Benitez. It does not appear to me that he needs an interpreter to understand these proceedings where he says he only misunderstood one word that Ive mentioned during an entire day of talking. I must have uttered thousands of words, he only misunderstood one. Thats pretty good, so it does not appear to me that he needs an interpreter to understand the proceedings.

To the extent that we dont know whether hes going to testify or not, it would be premature for me to say whether he needs one to interpret his remarks for the jury. That is a decision more appropriately made by the defendant after the advice of counsel. I am simply stating that I am willing to consider the appointment of an interpreter for the limited purpose of interpreting defendants testimony, although I know that counsel are well aware of the potential issues where a witness uses an interpreter only for a limited purpose. But those are somewhat tactical decisions that it is not the province of the court to invade.

So I will allow counsel to confer with his client on that subject. We do not presently have an interpreter scheduled. We do not have any interpreters who are acquainted with the Salvadorian dialect that are onthat are at our ready call. We would have to investigate that, that would take time. To the extent anything takes time and takes us off our schedule, that would create a problem, so to the extent that any interpreter services are needed, counsel is encouraged to notify the court immediately. At the present time Im very comfortable in proceeding in the English language without an interpreter the balance of the afternoon.

3. There Was No Abuse of Discretion

The trial would thereafter proceed, presided over by Judge McLaughlin. Defendant took the stand and testified at length, without there ever being a request for an interpreter. Never contending otherwise, defendants opening brief asserts that Trial counsel referred numerous times to appellants difficulties with English. (See, e.g., [reporters transcript pages] 291, 350-351, 431; 5RT 509; 6RT 551.) This, we submit, is a less than candid treatment of the record.

Reporters transcript page 291 has no reference to language difficulties; it is a page from defendants counsels opening statement! Reporters transcript pages 350-351 are from the cross-examination of Samantha, who, while asserting that sometimes its hard to understand him, said that defendant rarely misunderstood what she was saying. Reporters Transcript page 431 is from the testimony of prosecution witness T.C., the mother of the victim, who never had trouble communicating with defendant, and never had difficulty understanding him. Reporters transcript page 509 was a page from the testimony of Officer Navas who, among other things, was involved in the pretext call, and who said only that there were a couple of words defendant said that Officer Navas could not make out. And reporters transcript page 551 contains only defendants offer of proof as to the proposed testimony of Mr. Jackson. In sum, none of those pages demonstrates that defendant could not understand English.

Defendants brief also asserts that At the end of the prosecutions case after this point had been stressed numerous times, the trial court pointed out that despite appellants language difficulties Mr. Benitez is not using a certified interpreter in this action. No interpreter has ever been used in the history of this case and no request for an interpreter has ever been made by the defense. We fail to see how this helps defendant.

To begin with, the quotation in the brief is misleading, as the true quotation is although some mention has been of Mr. Benitezs language difficulties, Mr. Benitez is not using a certified interpreter in this action. (Emphasis added.) In any event, Judge McLaughlin continued as follows:

THE COURT: No interpreter has ever been used in the history of this case and no request for an interpreter has ever been made at any time by the defense; isnt that correct?

[DEFENSE COUNSEL]: It is correct.

THE COURT: All right.

To the extent that the record shows were discussing language difficulties, it is a language issue that the defense does not believe rises to the inability to understand these proceedings?

[DEFENSE COUNSEL]: Its more the ability to one, be comprehended by others when speaking and two, total understanding in situations where words hes unfamiliar with are used.

THE COURT: All right.

I think I understand that.

Nothing there, or anywhere else, even hints at, let alone demonstrates, that defendant did not understand English. And certainly no affirmative showing of the need for an interpreter. (In re Raymundo B., supra, 203 Cal.App.3dat p. 1453.)

In addition, we have reviewed the entire record of the trial, most notably the 76 pages of testimony by defendant. That review reveals a total of four occasions where defendant indicated he did not understand a question occasions, we hasten to add, where any misunderstanding could well have been because the question was inartfully phrased. There was also one occasion where defendants answer was non-responsive.

We also note that defendant was very articulate in his own interaction with the trial court. On one such occasion he addressed the court about the clothes he would wear; on another occasion he articulately offered to add something to what his counsel had said. Moreover, defense witness Neva Jackson testified about his numerous conversations with defendant and, asked about any language disabilities, testified that defendant occasionally had some problems with specific words. But that was it. As Mr. Jackson point blank put it: [I]t isnt that [defendant] doesnt understand English, its just that some words he doesnt understand.

Last, but by no means incidentally, the tape of the pretext call indicates that defendant understood completely his call with Samantha. We cannot improve on the succinct description of that call given by the district attorney in closing argument: defendants answers to Samantha were responsive, theyre appropriate, theyre clear and theyre logical to the question.

The observation of the Court of Appeal about defendant Benavidez over 40 years ago is spot on applicable here: The record is clear that . . . there was no thought in the minds of anyone, including [defendants] counsel, that [defendant] did not understand everything that was said and done in the trial. [Defendant] testified at length, his responses to questions were intelligent and had the [jury] believed him he would have been found not guilty. (People v. Benavidez (1967) 255 Cal.App.2d 563, 566.) To put it otherwise, [T]he evidence was overwhelming that [defendant] understood English. (In re Raymundo B., supra, 203 Cal.3d at p. 1456.)

CONCLUSION

We can hardly imagine the issue being handled better than the way it was handled by Judge McLaughlin here. There was no error. The judgment is affirmed.

_________________________

Richman, J.

We concur:

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Haerle, Acting P.J.

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Lambden, J.

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[1] Defendant, who was 42 years old at the time of the trial, acknowledged being in a relationship with T.C., and there was testimony about another relationship he had, with Jennifer Feeney, another woman with whom defendant would stay. Such relationships were despite the fact that defendant was married to, and lived with, Aurora (Medina) Benitez, his 81-year-old wife.

[2] There is no order or transcript in connection with the arraignment.