Filed 3/11/14 P. v. Mendez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056980
v. (Super.Ct.No. RIF1102065)
JOSE MENDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge.
(Retired judge of the Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.) Affirmed.
Torres & Torres and Tonja R. Torres, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney
General, A. Natasha Cortina, Ron Jakob, and Kelley Johnson, Deputy Attorneys General,
for Plaintiff and Respondent.
1 Defendant Jose Mendez attended a party at the apartment where Jane Doe lived.
Doe was eight years old at the time. While at the party, defendant forcibly took her to the
bathroom, removed her pants and underwear, and licked her vagina. Doe’s father found
Doe crying in the bathroom and she told him she had been touched by defendant. Doe’s
father beat up defendant and the police were called.
Defendant was found guilty of oral copulation of a minor under 10 years of age
(Pen. Code, § 288.7, subd. (b)) and sexual assault of a minor under the age of 14 years
through the use of force, violence, duress, menace and/or fear of immediate and unlawful
bodily injury (§ 269, subd. (a)(4)). Defendant was sentenced to a state prison term of 15
years to life.
Defendant makes one claim on appeal that his statements made to police at the
scene were obtained in violation of his rights against self-incrimination pursuant to
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and should have been suppressed.
We affirm the judgment.
I
FACTUAL BACKGROUND
A. People’s Case-in-Chief
1. Jane Doe’s trial testimony
Jane Doe was nine years old at the time she testified at trial. She was born in
November 2002. Doe lived in a three-bedroom apartment in Corona with her mother,
N.V., and her father, O.V.
2 On April, 10, 2011, N. and O. had a family party at the apartment. Doe’s uncle
and aunt were at the apartment and brought defendant with them. Everyone was dancing
and the adults were drinking beer. Many of the people at the party were in the living
room playing music on the computer.
Sometime during the night, defendant grabbed Doe’s arm and took her to the
bathroom.1 Doe claimed defendant grabbed her wrist and it hurt. A photograph taken
that night depicted a red mark on her wrist. However, at trial, Doe claimed that she got
the mark on her wrist the day before the party while playing baseball in her uncle’s
backyard.
They went into the bathroom and defendant closed and locked the door. Doe first
could not recall anything that happened in the bathroom. She then recalled that defendant
sat her on top of the counter by the sink. Defendant took off her underwear and pants. 2
He then “licked” her “private areas” which she described as her “pee” area.3 His head
was on her stomach while he licked her. It felt “slimy” and “disgusting.” Defendant kept
his hands away from her and did not cover her mouth.
She felt wetness just above where she went pee. She told him to stop but he kept
licking her. She initially stated that he never said anything to her but then said he asked
1 Doe did not identify defendant in court but she did testify that O. beat up the man who was in the bathroom with her. There was no dispute that O. beat up defendant.
2 On cross-examination she stated that her underwear was still on when she got up on the counter and then it was taken off.
3 She pointed to her crotch area when asked where her “pee” was located.
3 her if she wanted to lick his “pee,” which she declined. He also told her that he loved
her.
Doe stated at trial that the man in the bathroom with her did not have any tattoos
on his face or piercings on his face or ears. He had a mustache and a little hair
underneath. She also said the man had one tattoo by his eye. O. and N. were in the
kitchen while she was in the bathroom; she did not yell. She thought about screaming but
she never did.
Defendant finished after about 13 seconds and turned off the light. He locked the
door and left. Doe could not find the doorknob. O. finally got a key to the bathroom and
let Doe out. Doe was crying because she was scared.
Later that night, she did not take a bath or go to the bathroom. However, N. told
her to wipe herself with a baby wipe. She did not recall how much she wiped. Doe
recalled seeing a nurse after this happened; she told the nurse the truth. She told the truth
to the female officer she spoke to that night. She spoke with another woman about what
had happened and she told the truth. Doe told her aunt that night that defendant touched
her “pee-pee” with his hands.
2. O.’s testimony
O. saw Doe sitting next to defendant in the living room during the party. O.
thought that defendant was being too friendly with Doe. O. did not observe defendant
pull Doe into the bathroom. O. saw defendant walk away from the bathroom and proceed
to sit on the couch. O. walked past the bathroom door; it was “half closed.” The lights
were off in the bathroom and he could hear Doe crying inside. She was hiding behind the
4 door. Doe would not initially tell him what was wrong. O. asked her if defendant had
touched her and she immediately said yes. O. found defendant still sitting on the couch.
O. asked him what he had done to Doe and then he punched him.
3. Police investigation
Corona Police Officer Jody Kozakowski spoke with defendant at the apartment.
Defendant told her he was 28 years old. Officer Kozakowski was called to the location at
approximately 2:00 a.m. to relieve another officer. Defendant was seated in a plastic
chair outside the apartment. Officer Kozakowski was assigned to stand near defendant
while other officers were inside the apartment. Officer Kozakowski and defendant talked
about how defendant wanted to stay at the apartment in order to make statements about
what had happened that night. They also discussed, among other things, that his fiancée
was pregnant and that he was a musician. Defendant told Officer Kozakowski that he
had been beaten up by the occupants of the apartment and they told him they were going
to call the police. Defendant told them to call the police because they would have to
explain why they had beaten him up. He said he had no reason to run.
Defendant told Officer Kozakowski that Doe came onto him and wanted him to go
into the bathroom with her. Defendant resisted her efforts. Defendant went to the
bathroom and found her there. He also said she pulled him into the bathroom. He asked
her what she wanted and she responded, “What do you want.” Defendant then claimed
he realized it was a bad idea to be in the bathroom with Doe and left. Defendant admitted
being in the bathroom with Doe for ten minutes. He denied he urinated in front her.
Defendant claimed that Doe was “all up on him.”
5 Corona Police Officer Shannon Velasco indicated that defendant’s appearance had
changed since the night at the apartment. She had never seen him with tattoos on his
face. Officer Velasco spoke with Doe on that night at the apartment. Doe told Officer
Velasco that defendant took her into the bathroom in the hallway. Defendant went “pee”
while they were in the bathroom. She was in the bathtub while he urinated. She said his
underwear was blue. Defendant placed her on the counter and took off her pants and
underwear. She wanted to yell for help but he put his hand over her mouth. She showed
a mark on her wrist to Officer Velasco which she said she obtained when he dug his nails
into her wrist.
Doe said defendant “licked her pee.” She told him to stop because it was hurting
her. Defendant told her he loved her. Doe also told Officer Velasco he licked her butt.
Doe was interviewed by a child abuse interviewer on April 26, 2011. Defendant
(who she called Leche or Ritche) took her into the bathroom. Defendant asked her if she
wanted to lick his pee. Defendant pulled down his pants. His underwear was blue or
black. Defendant then urinated. She saw pee come out of his private part that looked
like a “weenie.” She wanted to leave the bathroom but there was some type of alarm on
the door. Defendant made her stand in the bathtub while he urinated.
Doe claimed defendant had “lots of tattoos in his face, his wrist.” Defendant told
her she could not leave the bathroom. Defendant took off her clothes and licked her
“pee.” He sat her on the counter in the bathroom. Defendant tried to put his tongue
“inside” of her and it hurt. His pants and boxers were down while he licked her. His
hands were on the counter.
6 4. Physical evidence
Mirella Del Degan was a certified sexual assault nurse. Del Degan asked Doe
why she was in the exam room with her. Doe told her, “‘[t]his guy took me into the
bathroom and he licked my private.’” Doe told Del Degan that defendant dug his fingers
into her wrist and that it hurt. Doe said he scratched her. She explained to Del Degan
that defendant went to the bathroom in front of her and he did not wash his hands. He put
his hand over her mouth so that she could not yell for help.
Del Degan observed red abrasive injuries on Doe’s wrist. The injuries were
consistent with her being scratched. There were no visible injuries on her vaginal area.
Del Degan then swabbed several areas including her upper inner thighs, her labia majora,
and the vulvar area for potential DNA.
A swab was taken from defendant’s mouth on April 10, 2011. Defendant’s navy
blue underwear was taken into evidence.
Mark Traughber was a senior criminalist employed by the Department of Justice.
He was an expert in analyzing DNA. Traughber tested the swabs taken from both
defendant and Doe. Traughber found no presence of semen. On the samples taken from
Doe’s vulvar area there was no presence of male DNA. On the sample taken from Doe’s
labia majora, a low amount of male DNA was found. On her right thigh, there was a low
amount of male DNA. There was a higher level of male DNA found in the sample from
her left thigh.
Traughber could only try to compare the male DNA found on her left thigh.
Defendant’s DNA matched the sample taken from her left thigh. The possibility that
7 another Hispanic male was the contributor was 1 out of 22 quadrillion. Traughber could
not determine conclusively that the male DNA was from saliva.
B. Defense
Joanna Mendez was married to defendant. She had never seen him be sexually
inappropriate around children, including their nine year old daughter. Defendant never
had tattoos. Joanna and defendant had been separated since 2006. She admitted he had
not spent much time with their daughter since they separated.
Erick Quintanilla had been friends with defendant for a long time. Quintanilla had
never seen him be sexually inappropriate with children.
II
ARGUMENT
STATEMENTS TO POLICE
IN VIOLATION OF DEFENDANT’S MIRANDA RIGHTS
Defendant contends that the trial court erroneously denied his motion to exclude
his statements made at the scene because the record shows he was “in custody” and not
free to leave when he gave incriminating responses to questions by Officer Kozakowski
without first being advised of his rights as required by Miranda. According to defendant,
Miranda warnings should have been given because the totality of circumstances show a
reasonable person in his situation would have believed he was in custody when he was
questioned by Officer Kozakowski.
8 A. Additional Factual Background
Prior to trial, defendant filed a motion in limine seeking to exclude any statements
he made to officers at the scene that were obtained without him being advised of his
Miranda rights. An Evidence Code section 402 hearing was held. Officer Kozakowski
testified.
Officer Kozakowski was called to the apartment at approximately 2:00 a.m. She
relieved another officer who was to get off his shift. Officer Kozakowski stated her role
was to “stand by” defendant. Defendant was not handcuffed. He was not told he was
under arrest. He was seated in a chair outside the residence and appeared relaxed.
Officer Kozakowski was in full uniform and had a gun on her belt. There were
three police cars on the scene. The other officer was within a few feet of defendant when
Officer Kozakowski arrived. She remained a couple of feet from defendant. Officer
Kozakowski would have had to check with the other officers at the scene to determine
whether defendant could have left if he wanted.
Officer Kozakowski spoke with defendant about various things while standing by
him. She spoke to him about being a musician and that his fiancée was pregnant.
Defendant told her how he got to the location that night with his friend. Defendant told
Officer Kozakowski that he was a victim of a crime and that is why he stayed. He told
her he had nothing to be afraid of and that he was beaten up by the occupants of the
apartment. He was not afraid when the occupants of the apartment told him that they
were going to call the police.
9 Officer Kozakowski talked to defendant about the fight. Another officer pulled
Officer Kozakowski aside and told her that there may be a warrant out for defendant’s
arrest but then determined it was not defendant. Defendant was asked to come to the
police station to talk further about the events of the night and he willingly went to the
police station. He was told that he did not have to go to the police station. He was
additionally told he was not under arrest.
At some point, defendant told Officer Kozakowski the police were called because
the occupants of the apartment thought he molested one of the girls in the apartment and
so they beat him up.
The People argued that Officer Kozakowski was standing by defendant and
maintaining the scene. Defendant was relaxed and sitting in a chair. He complained
about being a victim of a crime. There was no indication that defendant was under arrest.
Defendant volunteered why the occupants had beat him up. At no time did defendant
believe there was a warrant out for his arrest. He was told he was not under arrest when
they asked him to come to the police station. The People argued there was no indication
that defendant believed he was detained.
Defendant’s counsel argued the measure of whether defendant was detained is
what a reasonable person would think, and not what defendant thought in his mind. It
was clear that defendant was not free to leave because he was a molestation suspect.
The trial court ruled as follows: “Based on the testimony that I’ve heard, I made
two observations. First, I do not find that this was a custodial situation. They wanted to
talk to him. It was an investigatory-level thing to see what happened, what have we got
10 here. We have someone who was allegedly beaten, we have an allegation of molest . . .
Second, from what I heard, I don’t believe this was an interrogation. This was not a
setting where they sat him down and asked him pointed questions. They just were
shooting the breeze and talking and it came up and they talked about him being the
victim, and he talked about what he had been accused of. But it wasn’t the result of
pointed questions that brought those things out. And on that basis, I would deny a motion
to keep that out.”
B. Analysis
“Miranda warnings are required ‘as soon as a suspect’s freedom of action is
curtailed to a “degree associated with formal arrest.”’ [Citation.]” (People v. Pilster
(2006) 138 Cal.App.4th 1395, 1403 (Pilster).) “Custody determinations are resolved by
an objective standard: Would a reasonable person interpret the restraints used by the
police as tantamount to a formal arrest? [Citations.] The totality of the circumstances
surrounding an incident must be considered as a whole. [Citation.] Although no one
factor is controlling, the following circumstances should be considered: ‘(1) [W]hether
the suspect has been formally arrested; (2) absent formal arrest, the length of the
detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of
the officer, including the nature of the questioning.’ [Citation.] Additional factors are
whether the suspect agreed to the interview and was informed he or she could terminate
the questioning, whether police informed the person he or she was considered a witness
or suspect, whether there were restrictions on the suspect’s freedom of movement during
the interview, and whether police officers dominated and controlled the interrogation or
11 were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect,
and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (Id.
at pp. 1403-1404, fn. omitted.)
“[T]he term ‘interrogation’ under Miranda refers not only to express questioning,
but also to any words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely to elicit
an incriminating response from the suspect.” (Rhode Island v. Innis (1980) 446 U.S. 291,
301, fns. omitted.) Stated another way, “[t]he questioning prohibited by Miranda means
‘substantive questions which portend to develop the facts under investigation.’
[Citations.]” (People v. Patterson (1979) 88 Cal.App.3d 742, 748.) “In deciding whether
police conduct was ‘reasonably likely’ to elicit an incriminating response from the
suspect, we consider primarily the perceptions of the suspect rather than the intent of the
police.” (People v. Davis (2005) 36 Cal.4th 510, 554.)
“The question whether defendant was in custody for Miranda purposes is a mixed
question of law and fact.” (People v. Ochoa (1998) 19 Cal.4th 353, 401.) “We apply a
deferential substantial evidence standard to the trial court’s factual findings, but
independently determine whether the interrogation was custodial. [Citation.]” (Pilster,
supra, 138 Cal.App.4th at p. 1403.)
First the trial court did not err by finding that defendant was not in custody as the
facts do not support a reasonable person in defendant’s position would feel he was not
free to leave. Officer Kozakowski was by herself outside and was only briefly joined by
12 another officer. Officer Kozakowski never informed defendant he was under arrest and
he voluntarily went to the police station after his statements to her.
An additional factor to consider is whether the suspect agreed to the interview.
(Pilster, supra, 138 Cal.App.4th at p. 1403.) Here, defendant told Officer Kozakowski he
wanted to stay and tell the police that he had been beaten up by the occupants of the
apartment. The totality of the circumstances established that defendant was not in
custody.
Further, the evidence did not establish that defendant was interrogated. Officer
Kozakowski described a casual conversation with defendant. He was relaxed and seated
in a chair. They discussed his employment as a musician and that his fiancée was
pregnant. He volunteered statements he wanted to make: he had been beat up by the
occupants of the apartment. Officer Kozakowski did not question defendant about what
had happened but at some point he volunteered statements that he had been in the
bathroom with Doe. Defendant was told he did not have to go to the police station after
making the statements but that they wanted to take him to the station to be interviewed.
Defendant agreed to go to the police station. The evidence before the trial court
established that defendant was not subject to interrogation by Officer Kozakowski but
rather was engaged in a casual conservation during which he volunteered incriminating
statements.
Even if we were to find that a Miranda violation occurred, “[t]he erroneous
admission of statements obtained in violation of Miranda is reviewed for prejudice
pursuant to Chapman v. California (1967) 386 U.S. 18 (Chapman). [Citations.] Under
13 Chapman, reversal is required unless the People establish that the court’s error was
‘harmless beyond a reasonable doubt.’ [Citation.]” (In re Z.A. (2012) 207 Cal.App.4th
1401, 1422.) “Under [the Chapman] test, the appropriate inquiry is ‘not whether, in a
trial that occurred without the error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was surely unattributable to the
error.’ [Citation.]” (People v. Quartermain (1997) 16 Cal.4th 600, 621.)
The instant case does not turn on defendant’s statements to Officer Kozakowski,
but rather on Doe’s testimony and the DNA evidence. Doe certainly had many
inconsistencies in her various statements made to the police, the sexual abuse interviewer
and even at trial. However, she consistently stated that defendant had licked her on her
“pee,” her private area. That testimony was corroborated by the DNA evidence which
showed a minor amount of male DNA on her labia majora and a large amount, which
matched defendant, on her thigh. Defendant was seen leaving the bathroom by O.
Defendant’s statements only added to the already overwhelming evidence of defendant’s
guilt but cannot be attributed to the guilty verdict.
The People contend that the statements made by defendant were not a confession
to the crimes and therefore did not contribute to the People’s case. In closing argument,
the prosecutor argued that the statements made by defendant were “stupid” and “puts the
nail in the coffin” that he committed this act. If he was innocent, he would not have said
they had to go inside to do something. Defendant admitted that he was inside the
bathroom for ten minutes with her. The prosecutor argued, “What is a grown man doing
in a bathroom, after drinking, for ten minutes with an eight-year-old child?” The
14 prosecutor clearly used his statements to show defendant’s guilt. However, it was not the
only evidence and had the statements been excluded, defendant would still have been
found guilty.
Defendant complains on appeal that the DNA evidence was weak. However,
below, defendant’s counsel essentially conceded the DNA evidence was important in
arguing only an attempted crime was committed (he only licked her thigh) while
admitting some contact occurred. The minimal DNA evidence found in her vagina was
explained by the sexual assault nurse as likely being caused by her wiping herself with
the baby wipe.
Finally, it is clear from the instructions that the jury did not convict defendant
solely on the basis of his statements. The jury was instructed as follows: “You have
heard evidence that the defendant made oral or written statements before the trial. You
must decide whether the defendant made any of these statements, in whole or in part. If
you decide that the defendant made such statements, consider the statements, along with
all the other evidence, in reaching your verdict. It is up to you to decide how much
importance to give to the statements . . . . The defendant may not be convicted of any
crime based on his out-of-court statements alone. You may only rely on the defendant’s
out-of-court statements to convict him if you conclude that other evidence shows that the
charged crime or a lesser included offense was committed. [¶] That other evidence may
be slight and need only be enough to support a reasonable inference that a crime was
committed.” We presume the jury followed the instructions. (People v. Yeoman (2003)
31 Cal.4th 93, 139.)
15 Based on the foregoing, we find the trial court properly admitted defendant’s
statements to Officer Kozakowski at trial, and even if the statements should have been
excluded, any error was harmless beyond a reasonable doubt.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J.
We concur:
RAMIREZ P. J.
CODRINGTON J.