Filed 2/20/15 P. v. Garibo 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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,                                       E059814

v.                                                                       (Super.Ct.No. RIF1209513)

ANTONIO AYALA GARIBO,                                                    OPINION

         Defendant and Appellant.


         APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.

Affirmed.

         Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., Randall Einhorn, and Parag Agrawal, Deputy Attorneys General, for

Plaintiff and Respondent.

                                                             I

                                                 INTRODUCTION

         Defendant Antonio Ayala Garibo molested his stepdaughter throughout her
                                                             1
childhood. A jury convicted defendant of six counts of committing lewd and lascivious

acts upon a child under 14 years of age. (Pen. Code, § 288, subd. (a).)1 The trial court

sentenced defendant to 18 years in state prison: the upper term of eight years on count 1,

plus five consecutive two-year terms on counts 2 through 6.

       On appeal, defendant argues his Miranda2 rights were violated during a custodial

interrogation. Defendant also contends there is insufficient evidence of counts 5 and 6

and the sentences on those counts should be stayed. Finally, he claims there was

prejudicial instructional error. We reject defendant’s contentions and affirm the

judgment.

                                              II

                                 STATEMENT OF FACTS

A. Prior Incidents

       Jane Doe was born in September 1987. Between the ages of four or five and

seven years old, Jane Doe lived in Anaheim with defendant and her mother and siblings

after defendant married her mother. When Jane Doe was four or five years old,

defendant touched her inappropriately during a game of hide-and-go-seek. Jane Doe and

defendant were hiding in her bedroom when he touched her genitals3 over her clothes.


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

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

       3 Although the term “vagina” is used colloquially, apparently defendant actually
touched Jane Doe’s external genitalia, not the vagina which is an internal organ.


                                              2
Jane Doe did not know if defendant’s behavior was wrong but she was afraid to tell

anyone.

       In another incident, when Jane Doe was five years old, she was watching

television in the living room when defendant asked her to change into a skirt and to sit

next to him on the couch under a blanket. Defendant touched her chest and genitals

under her clothes and told her not to tell anyone. In another incident, defendant told Jane

Doe to sit on his bed. He displayed his penis and asked her to touch it. She refused and

ran away because she was scared.

       When Jane Doe was eight or nine years old, she remembered waking up five or six

times in the morning without any clothes on, confused because she had gone to bed

wearing her pajamas. One night, she awoke and saw defendant walking out of her room.

       When Jane Doe was eight years old, defendant also touched her during a car ride

to the store. He forced her to sit on his lap and she steered the car while he touched her

genitals over her clothes. She warned defendant to stop or she would tell her mother.

Defendant responded that Jane Doe’s mother would be angry at her. At the store,

defendant bought Jane Doe candy and gave her 50 cents to be quiet. Several times on

trips to the store, defendant touched Jane Doe and gave her money or candy.

       Defendant also touched Jane Doe at the beach when she was between eight and 10

years old. While pretending to teach her to swim, defendant would grab her crotch over

her swimsuit. While she played at the park, defendant would grab her over her clothing.

He once grabbed her crotch while placing her on top of a pony. Defendant also spied on

her while she was showering.

                                             3
       Twice when Jane Doe was sick, defendant rubbed Vicks VapoRub on her chest

underneath her shirt. Jane Doe was afraid to tell anyone because she believed defendant

might hurt her mother.

B. Acts of Lewd and Lascivious Conduct in Perris

       Jane Doe was 11 or 12 years old (between 1998 and 2000) when the family moved

to Perris in Riverside County. Defendant would call Jane Doe into his room, tell her to

sit next to him on his bed, and stroke her legs. He would caress her hands and try to

touch her genitals over her clothing but she pushed his hand away. Defendant also

attempted to grab Jane Doe’s breasts, starting with her elbows. This happened “[m]ore

than six, seven times.”

       Defendant stopped touching Jane Doe when she was 14 after a Child Protective

Services (CPS) worker came to the house in June 2002 on another matter—although Jane

Doe was afraid to talk to the CPS worker.4 Jane Doe knew defendant had a gun, he had

repeatedly told her that there was nothing wrong with the touching, and she thought no

one would believe her.

C. Post-Molestation Events

       In late 2003, when Jane Doe was 16 and pregnant, she left home with her

boyfriend. She still visited defendant but she would not leave her children alone with

him. She blocked out the events from her childhood. She borrowed money from


       4 A CPS worker interviewed Jane Doe in June 2002, when she was 14 years old.
to determine whether she suffered from any child abuse. Jane Doe denied that anyone
had touched her “private parts.”

                                            4
defendant and she and her husband rented a trailer to live in from defendant but, when

they could not pay, defendant asked her to leave. She did not fabricate allegations

against defendant for revenge.

       In 2012, when she was 25, Jane Doe began having sexual problems with her

husband. She began to remember past events and was hospitalized with panic attacks.

During a medical history examination taken at a mental health clinic, she revealed her

past abuse. Three months after the panic attack and hospital visit, she first told a family

member about the molestations.

       In November 2012, Investigator Glenn Johnson of the Riverside County Sheriff’s

Department interviewed Jane Doe who, was crying, upset, and “in shambles.” Jane Doe

recited a basic summary of what happened with defendant. She told Johnson that, after

she moved to Perris, the “touching continued as it had in Anaheim.” Johnson interviewed

defendant who finally admitted touching Jane Doe on her chest and genitals between

three and six times and wrote a letter of apology to her.

                                             III

                                 MIRANDA VIOLATION

       Defendant contends the trial court erred by denying his motion to suppress his

statements and the letter he wrote during the course of the custodial interview because the

questioning continued after he purportedly invoked his right to counsel.

A. The Interrogation

       During the interrogation, Investigator Johnson advised defendant of his Miranda

rights and defendant verbally confirmed he understood the rights. Subsequently,

                                             5
defendant mentioned a lawyer three times. When defendant first used the word “lawyer,”

Johnson asked defendant if he wanted a lawyer and defendant did not respond directly.

Instead, he denied touching Jane Doe and the interview continued. Then defendant asked

Johnson how long it would take to get a lawyer. Johnson told him, “A couple days.”

Later, defendant made the statement, “talk to a lawyer I guess.” Both times defendant

continued talking to Johnson.

       Defendant admitted that he touched and rubbed Jane Doe’s genitals three to six

times and specifically admitted the incident involving a pony in Anaheim. The three to

six incidents occurred in Perris, when Jane Doe was about eight years old. Defendant

also admitted to touching Jane Doe on the chest when she was in high school. He

physically demonstrated how he would rub Jane Doe. Defendant said he did not touch

Jane Doe more frequently because of his wife.

       During the interview, defendant wrote a letter of apology to Jane Doe, stating,

“‘Look [Jane Doe], forgive me for touching you. I hope this helps a lot. I have nothing

else to say.’” When defendant finally asked unambiguously for a lawyer, Investigator

Johnson ended the interview.

B. Relevant Law

       After Miranda warnings are given, the interrogation must cease if the suspect

indicates he wishes to remain silent or states he wants an attorney. The state bears the

burden by a preponderance of the evidence to show that a suspect’s waiver was knowing,

intelligent, and voluntary under the totality of the circumstances surrounding the

interrogation. (People v. Williams (2010) 49 Cal.4th 405, 425; People v. Cruz (2008) 44

                                             6
Ca1.4th 636, 668.) After a knowing and voluntary waiver, an interrogation may continue

unless the suspect clearly requests an attorney. (Williams, at p. 427.)

       In the absence of an unambiguous or unequivocal invocation, the interrogating

officer has no obligation to end the interrogation or ask the suspect any clarifying

questions. (Berghuis v. Thompkins (2010) 560 U.S. 370, 381; People v. Martinez (2010)

47 Cal.4th 911, 948.) However, the interrogator may try to clarify the suspect’s

intention. (People v. Williams, supra, 49 Cal.4th at p. 428.) Ambiguity is determined

objectively; statements deemed ambiguous are those that “a reasonable officer in light of

the circumstances would have understood [to signify] only that the suspect might be

invoking” his Miranda rights. (Davis v. United States (1994) 512 U.S. 452, 459; see

Williams, at p. 428.) In considering a Miranda violation on appeal, this court

independently reviews the trial court’s legal determination and defers to its factual

findings if substantial evidence supports them. (Williams, at p. 425.)

C. The Pretrial Motion

       Defendant made a pretrial motion to exclude all statements he made to

Investigator Johnson during the entire interview—and the letter he wrote—based on a

purported Miranda violation. The trial court—and this court— reviewed the actual DVD

in its entirety, focusing on the several mentions of an attorney. The trial court found (1)

defendant was in custody; (2) defendant received a Miranda admonishment and he

acknowledged the warning; (3) defendant understood his Miranda rights; (4) defendant

eventually invoked his Miranda rights; (5) but, until defendant unequivocally invoked his



                                             7
rights, there was ambiguity about whether defendant had invoked his Miranda rights and

the investigator was seeking clarification.

       As to the first attempted invocation, the trial court found the invocation was

ambiguous because it was mostly unintelligible and, when the investigator sought

clarification, defendant proceeded with the conversation voluntarily. The second

invocation was unclear based on unintelligible sections and because defendant qualified

his supposed invocation. When Investigator Johnson tried to clarify, defendant did not

further invoke his right to counsel and did not remain silent. Therefore, the trial court

denied the motion to exclude defendant’s statements and the written letter.

       Based on our review of the DVD and the transcript, we agree defendant did not

invoke his Miranda rights when defendant initially mentioned a lawyer to Investigator

Johnson. His statement was fragmented and confusing, and, when Johnson tried to

clarify his meaning, defendant continued talking to Johnson. A suspect must

unambiguously request counsel and “he must articulate his desire to have counsel present

sufficiently clearly that a reasonable police officer in the circumstances would understand

the statement to be a request for an attorney.” (Davis v. United States, supra, 512 U.S. at

pp. 459, 461; People v. Gonzalez (2005) 34 Cal.4th 1111, 1127.) “Under the Davis [v.

United States] standard, it is not enough that a suspect makes a reference to an attorney

‘that a reasonable officer in light of the circumstances would have understood only that

the suspect might be invoking the right to counsel.’” (People v. Nelson (2012) 53

Ca1.4th 367, 376, quoting Davis v. United States, supra, 512 U.S. at p. 459.)



                                              8
       Defendant’s second mention of an attorney was also unintelligible, confusing and

equivocal. After asking how long it would take to speak to a lawyer, defendant talked for

a long time and made a phone call to his sister before making an incomprehensible

statement: “No, (unintelligible)–you–(unintelligible) talk to a lawyer I guess.” While

defendant may have meant this statement as a request for counsel, it cannot be said that

this was the only reasonable understanding that an officer could have had. (People v.

Bacon (2010) 50 Cal.4th 1082, 1105-1007 [use of qualifying term “probably” rendered

statement ambiguous]; see Davis v. United States, supra, 512 U.S. at p. 459.)

Defendant’s statement was not an unambiguous invocation of his rights. When

Investigator Johnson asked a clarifying question to determine whether defendant wanted

to stop the interview, defendant responded, “Like I said, I don’t and–they’re gonna

(unintelligible) right away. I love my wife and kids.” Defendant did not clearly ask for a

lawyer.

       Defendant argues that the Ninth Circuit’s decision in Alvarez v. Gomez (9th Cir.

1999) 185 F.3d 995 is instructive because the defendant in that case requested to speak to

an attorney three times. This court is not bound by holdings of lower federal courts. (See

People v. Romero (2006) 140 Cal.App.4th 15, 19; People v. Burnett (2003) 110

Cal.App.4th 868, 882.) Furthermore, in Alvarez, the defendant requested “an attorney as

soon as he was asked whether he wished to waive his right to remain silent and submit to

questioning.” (People v. Williams, supra, 49 Cal.4th at p. 430.) Not so here.

       The California Supreme Court distinguished the Alvarez holding in situations

where defendant has first waived his Miranda rights and then fails to assert his rights

                                             9
unambiguously in the subsequent interrogation. (People v. Williams, supra, 49 Cal.4th at

pp. 430-432.) The Alvarez “court explained that it was evident the police were not

merely seeking clarification but sought to undermine the defendant’s intent to assert his

rights.” (Id. at p. 430.) Thus, defendant’s reliance on Alvarez is misplaced. Here, after

defendant was fully advised and waived his Miranda rights, he made ambiguous and

unclear references to an attorney. The officer properly followed up with clarifying

questions, and defendant’s answers indicated he was not invoking his right to counsel.

       Finally, defendant’s argument that the investigator misled him by stating that it

would take “a couple days” to talk to a lawyer is meritless because it was a truthful

answer. At trial, Johnson explained defendant would be appointed an attorney in a

couple of days when he was arraigned. Johnson did not mislead defendant. (People v.

Smith (2007) 40 Cal.4th 483, 503; People v. Enraca (2012) 53 Cal.4th 735, 756.)

       In summary, because defendant’s statements were unclear and ambiguous, it was

reasonable for Investigator Johnson to attempt to clarify defendant’s intention and to

continue the interview. There was no Fifth Amendment violation, and the trial court

properly admitted defendant’s statements and the letter he wrote during the interview.

                                            IV

                                   COUNTS 5 AND 6

       Jane Doe testified that defendant had touched her in Perris more than six or seven

times and, on cross-examination, she described four incidents in detail. Defendant

admitted touching Jane as many as six times when they lived in Perris although he

misstated her age as being eight years old. Defendant argues there is insufficient

                                            10
evidence to support convictions on counts 5 and 6. Based on Jane Doe’s testimony at

trial, and defendant’s corroborating admission, substantial evidence supported a

conviction for six separate incidents of inappropriate touching.

       On cross-examination, Jane Doe testified one incident occurred when defendant

touched her leg and genitals while they sat together. The second incident involved

defendant touching her when she and defendant were on the way to the store. A third

time, defendant again sat next to Jane Doe and touched her leg and genitals. During a

fourth incident, defendant touched her in the backyard. Jane Doe could not recall

“exactly where or when” about further incidents but she testified generally that defendant

touched her six times in Perris and defendant testified to the same facts.

       We apply a deferential standard of review, determining “whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v.

Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 575-578.) If

the evidence presented below is subject to differing inferences, the reviewing court must

assume that the trier of fact resolved all conflicting inferences in favor of the prosecution.

(Jackson, at p. 326.) A reviewing court does not make its own subjective determination

of guilt. (Id. at p. 321, fn. 13.)

       In People v. Jones (1990) 51 Cal.3d 294, 313 , the California Supreme Court held

that generic testimony is sufficiently substantial from an evidentiary standpoint to support

a conviction when the defendant is accused of repeatedly engaging in nonspecific lewd

and lascivious conduct which cannot be clearly differentiated. (Id. at p. 316, citing

                                             11
People v. Moore (1989) 211 Cal.App.3d 1400.) The victim must be able to describe the

acts committed with sufficient specificity and to differentiate between the various types

of proscribed conduct, such as lewd conduct, intercourse, oral copulation or sodomy.

The victim must also be able to describe the number of acts committed—such as “once a

week” or “whenever we drove to the store”— as well as a general time period based on

age or location, such as 12 or 13 years old and living in Perris. Additional details are

useful but not essential because of the difficulties inherent in proving child molestation

cases involving young victims and multiple repetitive acts. (Jones, at p. 305.)

       Collectively, the evidence here sufficiently establishes that defendant committed

the crimes charged in counts 5 and 6. A defendant may be constitutionally convicted of

child molestation based on “generic evidence describing (1) the kind of acts committed,

(2) the number of acts committed with sufficient certainty to support the alleged counts,

and (3) the general time period in which the acts occurred.” (People v. Fernandez (2013)

216 Cal.App.4th 540, 557.) In “child molestation cases, as long as the victim specifies

the type of conduct involved, its frequency, and that the conduct occurred during the

limitation period, nothing more is required to establish the substantiality of the victim’s

testimony.” (People v. Matute (2002) 103 Cal.App.4th 1437, 1446.)

       In this case, there was evidence from both the victim and defendant that he

touched her lewdly at least six times (or more) in Perris when she was younger than 14

years old. The number of times defendant admitted to touching Jane Doe, corroborated

her testimony that he touched her inappropriately six to seven times in Perris. Viewing

the entire record in the light most favorable to the prosecution, and drawing all

                                             12
reasonable inferences in support of the conviction, substantial evidence supports the six

convictions. For that reason, we do not need to consider defendant’s additional

arguments about section 654. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

                                             V

                                 JURY INSTRUCTIONS

       Whether a jury instruction correctly states the law is reviewed under the de novo

standard of review. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) Defendant

must demonstrate it is reasonably likely that the jury understood the instruction in a

manner that violated his constitutional rights, and that it is reasonably probable a more

favorable result would have been obtained at trial absent the error. (People v. Santana

(2013) 56 Cal.4th 999, 1012; People v. Smithey (1999) 20 Cal.4th 936, 963.)

Furthermore, “‘[i]nstructions should be interpreted, if possible, so as to support the

judgment rather than defeat it if they are reasonably susceptible to such an interpretation.’

[Citation.]” (Ramos, at p. 1088.)

       Defendant asserts the jury instructions were misleading and ambiguous and

allowed the jury to convict him of crimes that occurred in Orange County, which were

only admitted under Evidence Code section 1108. The jury instructions as a whole,

however, clarified that the crimes defendant was charged with occurred in Riverside

County. The Orange County evidence was only presented to help the jury determine if

the crimes in Riverside County actually occurred.

       The Anaheim incidents were used as evidence of prior sexual offenses under

Evidence Code section 1108. The amended information charged defendant with six

                                             13
counts of violating section 288, subdivision (a), “in the County of Riverside,” from the

years 1998 to 2002. The court agreed the Orange County offenses were to be considered

under Evidence Code section 1108.

       Defense counsel requested a special instruction that read: “Except as 1108

evidence, you may not use any of the incidents that occurred in Orange County as

incidents occurring in Riverside County for convictions in Counts 1 through 6. The court

denied the request, finding the information requested in the special instruction was

covered by the other instructions, specifically CALCRIM Nos. 1191 [Uncharged Sex

Acts of Defendant] and 303 [Limited Purpose Evidence].

       Ultimately, the jury received a unanimity instruction (CALCRM No. 3501) and

other pertinent instructions:

       “It is alleged that the crimes charged in Riverside County occurred on or about

September 5, 1995, through September 4, 2001. The People are not required to prove

that the crime took place exactly on that day, but only that it happened reasonably close

to that day.” (CALCRIM No. 207 [On or About Date].)

       “During the trial, certain evidence regarding allegations in Orange County [was]

admitted for a limited purpose. You may consider that evidence only for that purpose

and for no other.” (CALCRIM No. 303) [Limited Purpose Evidence]

       “The People presented evidence that the defendant committed the crimes of 288(a)

and 647.6 that were not charged in this case from Orange County. These crimes are

defined for you in these instructions. [¶] You may consider this evidence only if the

People have proved by a preponderance of the evidence that the defendant in fact

                                            14
committed the uncharged offenses. Proof by a preponderance of the evidence is a

different burden of proof from proof beyond a reasonable doubt. A fact is proved by a

preponderance of the evidence if you conclude that it is more likely than not that the fact

is true.

           “If the People have not met this burden of proof, you must disregard this evidence

entirely.

           “If you decide that the defendant committed the uncharged offenses, you may, but

are not required to, conclude from that evidence that the defendant was disposed or

inclined to commit sexual offenses, and based on that decision, also conclude that the

defendant was likely to commit and did commit the [section] 288(a), lewd or lascivious

acts on a child under 14, as charged here. If you conclude that the defendant committed

the uncharged offenses, that conclusion is only one factor to consider along with all the

other evidence. It is not sufficient by itself to prove that the defendant is guilty of counts

1-6, lewd or lascivious acts on a child under 14. The People must still prove each charge

beyond a reasonable doubt.

           “Do not consider this evidence for any other purpose.” (CALCRIM No. 1191

[Uncharged Sex Acts of Defendant].)”

           During closing argument, the prosecutor repeatedly reminded the jury that the six

charged offenses occurred in Perris, and that the Orange County acts could only be used

to determine whether the acts in Riverside County occurred, but could not satisfy the

elements needed for a guilty verdict. Defense counsel also stressed that the six charged

offenses must have occurred in Riverside County.

                                               15
      Defendant contends the jury instructions incorrectly allowed the jury to find that

the alleged crimes could have occurred in 1995 and, therefore, the jury could have found

defendant guilty based on crimes that occurred in Orange County and admitted as prior

crime evidence. However, the jury instructions were not ambiguous and correctly

charged the jury with the task of determining whether defendant committed six acts of

lewd and lascivious conduct in Riverside County.

      The evidence presented at trial was inconsistent as to when Jane Doe’s family

moved to Perris. Jane Doe said they moved when she was 11 or 12 years old, either

1998, 1999, or 2000. Defendant admitted touching Jane Doe in Perris when he thought

she was eight years old, which would have been in 1995 or 1996. Therefore, the trial

court properly instructed the jury that the incidents must have occurred sometime

between September 1995 and September 2001, when Jane Doe turned 14, based on the

state of the evidence and the statements made by both Jane Doe and defendant.

      CALCRIM No. 207 explicitly stated that that the crimes were “charged in

Riverside County,” making it clear to the jury that the inappropriate touching had to have

happened in Riverside County. Additionally, the remaining instructions clarified that all

charged crimes must have occurred in Riverside County and that the evidence of crimes

in Orange County was only presented for a limited purpose.

      Furthermore, counsels’ arguments must be considered in assessing whether any

ambiguity caused the jury to misunderstand the instructions. (People v. Young (2005) 34

Cal.4th 1149, 1202.) The prosecutor reiterated to the jury that the charged offenses



                                            16
occurred in Perris and defendant could not be convicted for events that occurred in

Anaheim.

       In sum, the jury instructions as a whole were not ambiguous, and there is no

reasonable likelihood that the jury understood the instructions in a manner that violated

defendant’s constitutional rights. (People v. Ayala (2000) 24 Cal.4th 243, 289.) The

instructions and counsels’ arguments made it clear that the jury could only convict

defendant based on conduct that occurred in Riverside County.

                                            VI

                                      DISPOSITION

       There was no Miranda or instructional error. Counts 5 and 6 are supported by

sufficient evidence. We affirm the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                               CODRINGTON
                                                                                            J.
We concur:

KING
                Acting P. J.


MILLER
                          J.




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