People v. Torres

California Court of Appeal·Decided July 12, 2018·No. D072610·Published

Opinion

Filed 7/12/18

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D072610

Plaintiff and Respondent,

v. (Super. Ct. No. SCN362581)

ANTONIO TORRES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, K. Michael

Kirkman, Judge. Reversed.

Arielle Bases, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Felicity Senoski and Joseph Anagnos, Deputy

Attorneys General, for Plaintiff and Respondent.

A jury convicted Antonio Torres of two counts of committing a lewd act with a

minor under 14 years old (Pen. Code, § 288, subd. (a)) and found true the allegations that

he had substantial sexual conduct with the minor. (Pen. Code, § 1203.066, subd. (a)(8).) The court sentenced him to a total term of eight years and ordered him to pay various

fines and fees, including victim restitution in the amount of $5,925.75.

Appointed appellate counsel has filed a brief summarizing the facts and

proceedings below. She presented no argument for reversal, but asked this court to

review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436

(Wende). Under Anders v. California (1967) 386 U.S. 738, she listed as possible, but not

arguable, issues whether: (1) defense counsel was ineffective for failing to raise

Miranda1 and voluntariness of confession issues, (2) sufficient evidence supported the

lewd conduct and substantial sexual conduct findings, (3) the trial court erred by

admitting a forensic interview into evidence, (4) the court erred when it gave the jury a

pinpoint instruction defining masturbation, (5) the court erred by imposing the middle

term sentence rather than the lower term sentence, and (6) the court erred by imposing

consecutive sentences.

We requested supplemental briefing to address whether defense counsel was

ineffective for failing to file a motion to suppress Torres's police interview statements

under Miranda. Both counsel responded to our request. We conclude that while the

interrogation was not custodial when it began, the totality of the circumstances show that

it became custodial, and Torres should have received Miranda warnings when the

detectives essentially told Torres that they would not leave, and he could not go home,

until Torres told them the truth based on the evidence they had against him.

1 Miranda v. Arizona (1966) 384 U.S. 436.

2 We also conclude that Torres would have prevailed on a suppression motion, that

the failure to file a suppression motion was prejudicial. We reverse the judgment based

on ineffective assistance of counsel. Accordingly, it is unnecessary for us to consider the

other issues raised in Torres's Wende brief.

FACTUAL AND PROCEDURAL BACKGROUND

The Allegation and Preliminary Investigation

In February 2017 73-year old Torres, a Mexican immigrant with no formal

education, rented a room from O.H. (Mother) and her husband (Father). The couple's

five-year-old daughter, Y.C., also lived at the residence. The couple and Y.C. referred to

Torres as "Don Tonio." Torres spent most of his time in his room, but would

occasionally watch television in the living room with Y.C.

One day after Mother had given Y.C. a bath, she told Mother that she wanted to

tell her something and then said " 'I don't know why Don Tonio always touches my little

butt.' " After initially denying that she and Y.C. had a name for Y.C.'s private parts,

when the prosecutor used the term "colita," Mother stated that the term referred to Y.C.'s

"buttocks" and "private parts," including her vagina. When Mother asked Y.C. exactly

what Torres had done, Y.C. stated that "he always touched her colita and showed her that

long thing" and that Y.C. pointed at Y.C.'s vagina. Y.C. also relayed that Torres had told

Y.C. to not tell Mother. Father confronted Torres who denied the allegation. Father

called the police and Torres moved out.

Two days later, San Diego Sheriff's Detective David Brannan followed up on the

report and arranged for Y.C. to receive a forensic medical examination that day and a

3 forensic interview about a week later. The forensic examination revealed no physical

findings. The doctor explained that no physical findings could still be consistent with

fingers in the genitalia based on multiple factors, including a child's immature concept of

penetration, the use of a lubricant, or tissue healing.

During the forensic interview, the interviewer established that Y.C. knew the

difference between the truth and a lie and that Y.C. had promised to tell the truth. Y.C.

stated she was there because Don Tonio, who used to live at her house, had touched her

"cola" with his hand more than once. The touching always occurred when Y.C. was in

the living room. Y.C. stated that she was wearing a nightgown and that Torres touched

her over her panties. She then stated that Torres had touched the inside of her cola, that

he "always was touching [her] cola," and that he told her to not tell Mother.

The Police Interview

About two weeks later, Detective Brannan and Detective Cabrera, who spoke

Spanish, visited Torres where he was currently living. Detective Brannan asked Torres

questions in English, Detective Cabrera translated the questions into Spanish for Torres

and then translated Torres's responses into English for Detective Brannan. Torres agreed

to speak to them after the detectives told him that he was not under arrest, was free to

leave, and did not need to speak to them. They then explained that, for privacy, they

wanted to talk to him in their parked car.

The vehicle was unmarked, both detectives wore plain clothes and no weapons

were visible. Detective Brannan sat in the driver's seat, Torres in the front passenger

4 seat, and Detective Cabrera sat in the rear seat behind Torres. The car doors were closed

and the engine was running to power the air conditioning.

Torres believed that the detectives were there to talk to him because he had

urinated in the yard. After Torres explained this, the detectives asked Torres to provide a

saliva sample for testing. Torres agreed. The detectives explained that DNA could be

used to test if a person touched another person, that Torres's DNA was being tested in the

car's trunk against other evidence, and that they would know the results in a couple of

minutes. When asked why he thought the detectives were conducting a DNA test,

Torres stated "No, to know if—if I touched the little girl or what?" When asked what the

little girl said, Torres replied that the girl told her mom that he had grabbed the girl in her

private part, meaning her vagina, but that the allegation was not true. When asked how

many times he touched the girl's vagina, Torres stated, "No, not never," and "No. No.

No. She's a little girl (unintelligible) of four years."

When Torres expressed the belief that the girl and Mother had seen his penis when

he was outside urinating, the detectives explained to Torres that a child psychologist

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