P. v. Soria

Filed 10/30/06 P. v. Soria CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Federico Hernandez Soria was tried before a jury and convicted of lewd conduct with a child under 14 years of age. (Pen. Code, § 288, subd. (a).)^[1] He was sentenced to the eight-year upper term plus an additional year for a prior prison term enhancement under section 667.5, subdivision (b). Appellant argues that the judgment must be reversed because: (1) the trial court improperly excluded three Spanish-speaking prospective jurors for cause; (2) the court admitted evidence of a statement made by appellant to police that was not preceded by a knowing and intelligent waiver of rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (3) evidence of the victim's description of the offense to his mother under the fresh complaint doctrine violated the Confrontation Clause under Crawford v. Washington (2004) 541 U.S. 36 (Crawford); (4) the court improperly restricted defense counsel's cross-examination of a witness who had transcribed and translated appellant's statement to police from Spanish to English; and (5) the evidence was insufficient to support the conviction. Appellant alternatively argues that the court abused its discretion when it imposed the upper term on the lewd conduct count and improperly relied on aggravating factors that were neither admitted by him nor found true by the jury. Finally, appellant notes that the abstract of judgment should be modified to reflect that conduct credits were awarded under section 2933.1, rather than section 4019. We agree with the final contention, but otherwise affirm.

FACTS

Lucia M. and Christino S. lived in a recreational vehicle (R.V.) in a motor home park with their five-year-old son Abraham. Appellant lived in a car parked behind the R.V. During the summer of 2004, Lucia and Christino hired appellant to care for Abraham while they worked during the day.

Abraham's behavior began to change after appellant began caring for him. He became more aggressive, seemed sad and no longer wanted to see appellant. He sometimes wet the bed, which he had not done before, and had problems defecating. Lucia once found bloodstains on the back of Abraham's underwear.

On August 16, 2004, Lucia and Christino left for work in the morning as they usually did, but Christino returned home at lunchtime. He opened the door to the R.V. and found appellant bending over Abraham, who was crying and was naked from the waist down. Appellant was wearing only underwear and he had placed his partially erect penis between the cheeks of Abraham's buttocks. Christino said, "What are you doing to my baby?" and appellant replied that Abraham had wanted it. Christino told appellant to leave and appellant did so. Christino did not see appellant again.

Christino did not call the police because he wanted to get even with appellant "with [his] own hands." He took Abraham to the restaurant where Lucia worked, and Abraham told his mother that appellant had molested him. Later that night, Abraham again described the molestation to his mother. Lucia examined Abraham's body and noticed that his buttocks were red.

Four days later, Lucia took Abraham to a medical clinic to be examined. She was unable to take him any sooner because she did not have the money. Abraham resisted examination and kept saying it didn't hurt "down there." The doctor reported possible sexual abuse to the police, but Abraham would not speak to the officers who tried to interview him. He was interviewed and examined by a physician with the sexual abuse response team (SART), who found lacerations in his perianal area that were consistent with penetration through the fold of the buttocks. Abraham denied that appellant has sexually assaulted him when he was questioned by a SART forensic interviewer, but his physical demeanor did not correspond with this denial.

Detective Jaycee Hunter of the Santa Barbara Police Department arrested appellant at a homeless shelter and interviewed him for about an hour after advising him of his Miranda rights. Appellant said that he had been watching television in the R.V. when Abraham fell down face down on the bed in front of him, and that he had been trying to comfort Abraham when his father walked in and saw them. He also said he had touched Abraham's buttocks with his penis, that he had been watching a pornographic movie, and that Abraham had opened the cheeks of his buttocks for him.

DISCUSSION

Exclusion of Spanish-Speaking Jurors for Cause

Some of the witnesses at trial spoke Spanish and required an interpreter. During voir dire, the trial court asked whether prospective jurors who spoke some Spanish would be able to accept the interpreter's translation, even if they believed the interpreter had made a mistake. Juror H., a local defense attorney who knew both defense counsel and the deputy district attorney trying appellant's case, indicated that he would not be able to do so. Juror P. agreed with Juror H., as did Juror N. All three were excused for cause on the court's own motion based on their stated intention to disregard the court's instructions on translation issues. The court noted that another reason for excusing Juror H. was his familiarity with both counsel. We reject appellant's contention that the exclusion of these jurors deprived him of a fair trial.

A juror should be excused for cause when his or her views would prevent or substantially impair the performance of his duties in accordance with the court's instructions. (People v. Holt (1997) 15 Cal.4th 619, 650-651.) Bias need not be proven "with unmistakable clarity," so long as the trial judge is left with the "definite impression" that a juror would be unable to faithfully and impartially apply the law in the case. (People v. Haley (2004) 34 Cal.4th 283, 306.) An order excusing a prospective juror for cause is reviewed for abuse of discretion and will be upheld on appeal if it is fairly supported by the record. (People v. Merced (2001) 94 Cal.App.4th 1024, 1029-1030.)

When asked whether he would follow the court interpreter's translation of a Spanish statement even if he believed a mistake had been made, Juror H. stated, "I couldn't do that. If I understood the witness to say something in Spanish and it was misinterpreted, I could not live with the misinterpretation, unless it was of no moment. I've been in this business long enough to see interpreters that do it right, some do it wrong, and it would depend, but I think what I would do is bring it to the attention of the Court." The court later asked Juror H. whether he could comply if instructed to follow the interpreter's version of a statement rather than his own. Juror H. responded, "Your Honor, it depends. Let me give you a very simple example. If in this case the person in Spanish said he did not touch her, and I hear that, and the interpreter says he touched her, then there's not a chance in the world I'm going to, you know, take that instruction." The court clarified, "[I]n other words, you're not going to follow the Court's directive. It's conditional whether you're going to follow it depending upon whether you agree with the interpretation and whether or not the statement or the answer is accurate." Juror H. responded, "I have to say that's correct, your Honor," and was excused for cause over defense objection.

After the court excused Juror H., Juror P. told the court he felt the same way, "because I can speak Spanish, and if it's wrong, I'm going to go with what I know is right with my conscience." The court asked, "If you believed that the interpretation given by the court-certified interpreter was incorrect, and I directed you to follow the court-certified interpreter's interpretation, you would disregard my order?" Mr. P. replied, "I think I would," and was excused for cause. The court later excused Juror N., who had a "moderate" knowledge of Spanish and said that if he felt the court interpreter's translation was wrong, he would follow his own interpretation.

A juror commits misconduct when he relies on his own interpretation of testimony given in a foreign language in lieu of the court interpreter's translation. (People v. Cabrera (1991) 230 Cal.App.3d 300, 304.) In this case, the court properly excused for cause three jurors who indicated that they would be prone to committing such misconduct. The court did not, as appellant suggests, excuse all Spanish-speaking jurors. Several other prospective jurors spoke Spanish with varying levels of competency and were passed for cause after they indicated they would follow the court's instructions and accept the interpreter's translation.

Appellant argues that the court should have retained jurors who were willing to call possible interpretation errors to the court's attention. But the jurors it excused did not merely state that they would notify the court if such issues arose; they maintained that they would not follow instructions if the court determined the interpreter's translation of a word or phrase was the correct one. Appellant assumes that a juror unwilling to follow the interpreter's translation would act as a safeguard when there was disagreement as to what the witness said, but it is just as likely that the juror's interpretation would be the incorrect one or the one less favorable to the defense. The trial court did not abuse its discretion when it excused jurors who categorically stated that they would accept their own translations over that of the court interpreter.

Adequacy of Miranda Advisement

Detective Hunter interviewed appellant in Spanish after reading him a Spanish version of the Miranda admonition and securing a waiver of those rights. Carlos Cerecedo, a state-certified translator/interpreter, transcribed the warning and interview into written Spanish and then translated the Spanish transcript into English. Although the English version of the transcript shows a complete Miranda advisement, appellant moved to suppress the statement on the ground that he was not adequately advised of his rights in Spanish. The trial court held a full hearing on the issue under Evidence Code section 402, at which time the defense presented expert testimony about discrepancies between the Spanish advisement on the audiotape and the English translation. The court denied the motion to suppress the statement, concluding that the discrepancies were not material and did not change the meaning of the advisement. We reject appellant's argument that this ruling was erroneous.

A statement made by a criminal suspect during a police interrogation is admissible at trial only if the suspect is first advised of and waives his right to counsel and his right to remain silent. (Miranda, supra, 384 U.S. at pp. 478-479.) The waiver is effective only if it is knowing and voluntary under the totality of the circumstances. (People v. Whitson (1998) 17 Cal.4th 229, 246.) The prosecution bears the burden of establishing by a preponderance of the evidence that the defendant's relinquishment of rights was voluntary and that the waiver was made with full awareness of those rights and the consequences of the waiver. (Id. at p. 247.) On review, we accept the trial court's resolution of disputed facts and inferences if they are supported by substantial evidence. (Id. at p. 248.)

Cerecedo's English translation of the admonition by Detective Hunter reads as follows: "[Detective]: OK, Mr. Soria? [Defendent]: Huh. [Detective]: I would like to have your statement about what happened. . . . [Defendent]: Uhu. [Detective]: . . . in this incident, ah, but because you are here in the Police Department I have to read you your rights, ok? Please listen carefully to me. You have the right not to say anything; anything you say can be used against you and will be used against you in a Court of law. You have the right to speak with an attorney and have an attorney present before and during any questioning. If you can't pay an attorney, one will be appointed for free to represent you before and during the questioning. Do you understand each one of the rights that I have just explained to you? Yes or no? [Defendant]: Yes. [Detective]: Ok, having in mind those rights, do you wish to talk to me now about this incident? Yes or no? [Defendant]: As you wish. [Detective]: Ok, but you . . . [DEFENDANT]: I do not have any problem. [Detective]: It's ok. So is it ok we talk about this incident? [Defendant]: Yes."

Dr. Giorgio Perissinotto is a professor of Hispanic linguistics at the University of California, Santa Barbara. He was called as a defense expert at the Evidence Code section 402 hearing and opined that the Spanish spoken to appellant by Detective Hunter was not as "fluid" as the English translation by Cerecedo would suggest. Cerecedo acknowledged during cross-examination that Detective Hunter had made a number of grammatical errors and that some of his statements were ambiguous: (1) instead of using the Spanish word for "will" in the phrase "anything said can and will be used against you," the Detective used words that translated into "anything said 'may/might/could' be used against you"; (2) Rather than using the verb "pagar" to indicate that an attorney would be provided if appellant could not afford to pay for one, the word used sounded like "pegar," which would mean roughly that if appellant could not "hit" an attorney, one would be provided; (3) When Hunter purported to ask whether "having in mind your rights," appellant wished to talk, he did not use the word "cuento," meaning "story," rather than "cuenta," meaning "into account"; (4) Detective Hunter prefaced the interview by stating, "I have to read your rights" rather than "I have to read you your rights"; and (5) appellant did not actually say "yes" when asked whether he understood his rights.

The trial court concluded that while some of the words used by Detective Hunter were not those in the standardized Miranda advisement, the disparities did not materially affect is meaning. It rejected an argument by defense counsel that appellant made only an ambiguous sound when asked whether he understood his rights, finding that appellant said "uh-huh" as a clearly affirmative comment. It also rejected counsel's argument that appellant did not clearly waive his rights when he responded "As you wish" when asked whether he wanted to talk, noting that appellant responded with an unequivocal "yes" when asked a second time.

These findings are supported by substantial evidence. Although there were some variations and minor errors in Detective Hunter's spoken Miranda advisement, none of them altered its fundamental meaning. Construing the words spoken by Hunter in the light most favorable to the prosecution, appellant was clearly advised that he had a right to remain silent and to have an attorney present during questioning. He was told an attorney could be appointed. He was advised that what he said could be used against him. So long as the warning reasonably conveys the rights at issue and the defendant expresses an understanding of those rights, the waiver is knowing and intelligent. (People v. Wash (1993) 6 Cal.4th 215, 236-237.)

Cross-Examination of Translator

The English version of appellant's statements to Detective Hunter were introduced by the prosecution at trial through the testimony of the translator, Carlos Cerecedo. Cerecedo had transcribed the audio-taped Spanish language interview into written Spanish, and then translated the Spanish version into English. Defense counsel cross-examined Cerecedo extensively on the accuracy of the transcription and translation. On the third day of cross-examination, the court told counsel that his questioning was becoming unduly time-consuming and repetitive under Evidence Code section 352. The court stated that was going to permit questioning for "a couple more hours, and that's it." Appellant argues that this ruling violated his rights to confrontation under the Sixth Amendment and to due process of law.

The confrontation clause protects a defendant's right to engage in appropriate cross-examination of the witnesses against him and to thereby "expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness." (Davis v. Alaska (1974) 415 U.S. 308, 318.) The court retains wide latitude to restrict cross-examination that is repetitive, prejudicial, confusing or of marginal relevance. (People v. Frye (1998) 18 Cal.4th 894, 946.) A trial court does not violate the defendant's right to confrontation by restricting cross-examination "unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witness's] credibility.'" (Ibid.)

Appellant has not demonstrated that additional cross-examination would have produced a significantly different impression of Cerecedo's credibility. Defense counsel went through much of his transcription and translation point by point to inquire about possible errors. Many of the discrepancies had no relevance to the substance of the interview. The jury was aware that that there were flaws in the translation and appellant points to no material discrepancy that counsel was unable to bring to the jurors' attention. Cerecedo acknowledged that there were errors in the translation. The court was justified in setting a time limit on cross-examination and in restricting counsel's focus to material matters.

We reject appellant's related claim that the court's limitation on cross-examination denied him a meaningful opportunity to present a defense. The ordinary rules of evidence, including Evidence Code section 352, do not infringe on a defendant's right to due process. (People v. Babbitt (1988) 45 Cal.3d 660, 682-683.) The court did not abuse its discretion under section 352 when it had permitted cross-examination of the translator to continue over several days and had allowed counsel to fully explore the errors he considered to be material to the case.

Confrontation Clause and Fresh Complaint Doctrine

Abraham's mother Lucia testified that he told her he had been sexually assaulted. The court allowed the evidence under the "fresh complaint" doctrine, which renders admissible evidence that a victim reported a sexual assault to a third person for the non-hearsay purpose of dispelling the notion that the victim remained silent and that therefore the offense did not occur. (People v. Brown (1994) 8 Cal.4th 746, 756.) Appellant argues that the admission of Abraham's statement to his mother violated his right to confrontation under Crawford.

Crawford holds that a "testimonial" hearsay statement may not be introduced at trial unless the declarant is unavailable to testify and the defense has had a previous opportunity for cross-examination. (Crawford, supra, 541 U.S. at pp. 49-57.) Crawford does not apply to nonhearsay statements admitted under the fresh complaint doctrine because the Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Id. at p. 59, fn. 9.)

Even if we assume that a statement offered under the fresh complaint doctrine is subject to a Confrontation Clause analysis, Crawford only applies to "testimonial" statements. Though no comprehensive definition of testimonial has been articulated, Crawford notes that at a minimum, it includes "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Crawford, supra, 541 U.S. at p. 68.) These concrete examples show that a testimonial statement requires a more formal setting than a conversation between a young child and his mother. "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." (Id. at p. 51; accord, Davis v. Washington (2006) __ U.S. __ [126 S.Ct. 2266, 2273-2274].)

Abraham's statement to his mother was not in any sense comparable to a court hearing or structured police interview. He was too young to have made the statement with any awareness of the legal consequences and would have had no expectation that it would be used in court. (Contrast People v. Sisavath (2004) 118 Cal.App.4th 1396, 1403.) The statement was not testimonial for purposes of the Confrontation Clause and its introduction for a non-hearsay purpose did not violate Crawford.

Sufficiency of the Evidence

Appellant argues that the evidence did not support his lewd conduct conviction, which required proof that he touched a child under 14 years of age with the intent to arouse, appeal to or gratify the child's or his own lust, passions or sexual desires. (§ 288, subd. (a); People v. Memro (1995) 11 Cal.4th 786, 861.) We disagree.

Abraham's father Christino testified that he came home to find appellant bent over his naked, crying, five-year-old son with a partially erect penis. The boy had marks near his anus that were consistent with partial penetration by a penis. Abraham's nonverbal conduct was consistent with a victim of molestation, as was the blood that his mother had previously discovered in his pants. Appellant admitted touching Abraham's buttocks with his penis when he was questioned by Detective Hunter. Far from being insufficient, the evidence was overwhelming.

Appellant complains that Abraham's parents delayed in seeking medical attention and that Abraham would not discuss molestation when interviewed by police and the SART doctor. Even if these circumstances tend to contradict other circumstances proving guilt, they do not affect the legal sufficiency of the evidence. Appellant's challenge is nothing more than an invitation to reweigh the evidence on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 333.)

Imposition of Upper Term

The trial court imposed the upper term for appellant's lewd conduct conviction, relying on the following factors in aggravation: (1) the victim was significantly younger and particularly vulnerable; (2) appellant performed poorly on probation and parole; and (3) appellant violated a position of trust. Appellant argues that the first two factors were inappropriate and that resentencing is required. We disagree.

Rule 4.421 of the California Rules of Court sets forth a non-exhaustive list of aggravating factors that may support an upper term sentence. One such factor is, "The victim was particularly vulnerable." (Rule 4.42(a)(3).) Appellant argues that the victim's vulnerability may not be considered when it is based solely on the age of the victim and the age of the victim is an element of the offense. (See People v. Alvarado (2001) 87 Cal.App.4th 178, 195.) Although age alone would not suffice as an aggravating factor in this case, circumstances besides Abraham's age supported the determination that he was particularly vulnerable. In addition to being very young, he was isolated in the trailer and was physically much smaller than appellant. (See ibid.) The trial court properly considered particular vulnerability as an aggravating factor.

Nor did the court err when it considered appellant's poor performance on probation and parole. Rule 4.421, subdivision (b)(5) allows the court to consider that "The defendant's prior performance on probation or parole was unsatisfactory." Appellant was initially placed on probation for a 1991 conviction of transporting or selling a controlled substance, but violated that probation and was sent to prison. He later violated parole and was returned to prison three separate times. Appellant cites no authority for his claim that the court gave undue weight to these separate violations because they all arose out of one conviction.

We also reject appellant's contention that the upper term sentence violated his constitutional right to due process or a jury trial under Blakely v. Washington (2004) 542 U.S. 296, because it was based on factors that were neither admitted by him nor found true by the jury. Our Supreme Court upheld California's procedure for selecting an upper term sentence in People v. Black (2005) 35 Cal.4th 1238, and we are bound by that decision.

Abstract of Judgment

Appellant was awarded 237 days of actual custody credits and 35 days of conduct credits under section 2933.1, which limits the conduct credits available for certain felonies to 15 percent. Appellant contends the abstract of judgment must be modified because it states that conduct credits were awarded under section 4019, rather than section 2933.1. The Attorney General agrees.

Cumulative Error

Appellant contends the cumulative effect of the court's errors deprived him of his right to a fair trial, even if no individual error requires reversal. Because we have found no trial court error, we reject the claim.

DISPOSITION

The abstract of judgment is modified to state that the 35 days of conduct credits were awarded under section 2933.1, rather than section 4019. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Brian E. Hill, Judge

Superior Court County of Santa Barbara

______________________________

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Respondent.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters; Lawrence M. Daniels, Supervising Deputy Attorneys General, Joseph P. Lee, Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code unless otherwise stated.