Filed 10/16/13 P. v. Gallegos CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046986

         v.                                                            (Super. Ct. No. 09CF3141)

JORGE MIGUEL GALLEGOS,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Carla M.
Singer, Judge. Affirmed.
                   Susan D. Shors, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A.
Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
               A jury convicted Jorge Miguel Gallegos of one count of unlawful sexual
intercourse or sodomy with a child under age 10 (Pen. Code, § 288.7, subd. (a); count 1),1
three counts of oral copulation or sexual penetration of a child under age 10 (§ 288.7,
subd. (b); counts 2, 3, 5), one count of dissuading a witness (§ 136.1, subd. (b); count 4),
and one of lewd and lascivious acts on a child under age 14 (§ 228, subd. (a); count 6).
The trial court sentenced him to a total indeterminate term of 40 years to life, plus a
determinate term of 8 months.
               Gallegos gave a statement after his arrest. As he did in the trial court,
Gallegos claims his statements were obtained in violation of his Miranda rights (Miranda
v. Arizona (1966) 384 U.S. 436) and coerced. The trial court rejected his arguments and
admitted evidence of Gallegos’s statement at trial. We conclude the trial court’s ruling is
correct and affirm the judgment.


                                           FACTS


               In 2009, Norma M.2 lived with Gallegos and her four children. Gallegos is
the biological father of the youngest two children, and he assumed a parental role with
Norma’s eldest children, Jessica M., then eight years old, and Sheila M.
               When Norma went to bed on Christmas Eve, Gallegos stayed up with
Jessica and Sheila to watch a movie. Norma woke up sometime later and noticed the
television had been turned off but Gallegos had not come to bed. She quietly entered the
family room and saw Sheila asleep on the couch. When she peeked into the kitchen,
Norma saw Gallegos and Jessica on the kitchen floor. Jessica’s underpants and pants had
been pulled down to her ankles. Gallegos was licking Jessica’s vagina. Norma turned on


       1   All further statutory references are to the Penal Code.
       2   First names have been used to protect the minor’s identity.

                                               2
a light and told Gallegos she was going to call the police. Gallegos reacted by struggling
with Norma, disconnecting the telephone line, threatening her if she called the police, and
running out of the house.
              Santa Ana Police Officers Richard Ribeiro and Antonio Graham were
dispatched to investigate Norma’s call. Norma, was “emotional,” and because she spoke
only Spanish, Ribeiro called for a Spanish interpreter. With the assistance of Corporal
Elms, Ribeiro listened as Norma described what she had seen transpire in the kitchen.
Ribeiro also found a pair of child-sized pants on the kitchen floor.
              Gallegos was quickly arrested and taken to the Santa Ana Police
Department. Once there, he provided a DNA sample, and the officers put him in an
interview room furnished with audio and video recording equipment.
              As depicted in the DVD of the interview and transcripts prepared by the
prosecution and defense, Santa Ana Police Officers David Lima and Ribeiro interviewed
Gallegos between 2:20 a.m. and 3:15 a.m. on December 25, 2009. Lima questioned
Gallegos in Spanish. We have utilized the English translation of Lima’s questions and
Gallegos’s answers as provided in the parties’ transcripts.
              Lima first introduced himself and Ribeiro and then asked Gallegos to sign a
form memorializing his consent to DNA testing. Gallegos either said he needed to read
the form or he could not read, and Lima explained that the form was consent for “the
thing that they put in your mouth.” Lima then said, “Um, before we start I . . . he . . . the
officer is going to talk to you and I am going to translate. My Spanish isn’t too great but
you can understand me right? Yes? Yes or no?” Gallegos responded, “Yes.”
              After Gallegos indicated he understood Lima, the officer read the Santa
Ana Police Department’s standard Miranda admonishment of rights form in Spanish.
Lima explained, “This here are your rights that you have . . . I am going to read them to
you and every time that you say yes then tell me yes. Okay. ‘You have the right not to
say anything do you understand? [¶] . . . [¶] Yes or no? ’” Gallegos responded, “Yes.”

                                              3
Lima continued, “Yes. Okay. ‘What you say today . . . may be used against you in a
court, do you understand?’” Gallegos replied, “Yes.” Lima said, “‘you have the right to
an attorney before and during any questioning, do you understand?’” Gallegos again
said, “Yes.” Lima continued, “‘If you do not have money to pay for an attorney one will
be appointed for you before any questioning if you wish, do you understand?’” Gallegos
replied, “Yes.”
              Lima asked Gallegos if he “wish[ed] to speak with us about what
happened[,]” but then asked Gallegos where he was from. Gallegos said he was from
Michoacán, Mexico. Lima stated, “Oh. Okay. We are going to talk
about . . . about . . . we are going to talk about the . . . why we are here and all that, okay?
If that’s all right with you.” Before Gallegos could respond, Lima asked him if he knew
the date. Gallegos said the date was “24.” Lima asked for the time, and Ribeiro said it
was 2:20.
              Ribeiro then directed Lima to ask Gallegos if he knew why he had been
arrested, Gallegos responded, “[b]ecause they say that I tried to abuse the girl.” He
initially denied doing anything and said he did not know why Norma thought otherwise.
After getting some background information about Gallegos’s relationship with Norma,
Lima said, “Okay. So I am going to tell you honestly that you have to . . . tell us the
truth. It’s in your favor for you to tell us the truth.” Gallegos responded, “Well it’s better
for me anyway.” Lima responded, “Okay. So why don’t you tell us the truth?” Gallegos
said, “That’s the truth.” Lima replied, “[t]hink about it one . . . minute.” Gallegos then
said, “Why am I going to lie to you, I am going to be here anyway.”
              Lima proceeded to ask Gallegos a series of questions beginning with
whether he had kissed Jessica. Gallegos responded in the affirmative, and then admitted
he kissed Jessica on the butt, “about two” times, one time being about a month before
what happened on Christmas Eve. When Lima asked about what had happened that day,



                                               4
Gallegos responded, “It was the fucking craziness I don’t know what the fuck got into
me . . . .”
              Gallegos then admitted grabbing Jessica while they were sitting on the
couch, hugging and kissing her, touching her bottom underneath her clothing, exposing
his penis, and masturbating. He said he carried Jessica to the kitchen, told her to remove
her pants, and then he removed her underwear. While she was lying on her back on the
floor, he rubbed her vagina, and then inserted first his right thumb and then his penis into
Jessica’s vagina. He directed her to get down into a “crawling” position and kissed her
bottom. When Lima asked, “tell me the truth, did you put your penis inside of her[,]”
Gallegos responded, “Yes.” Gallegos said he did not ejaculate this time, but he had
ejaculated on two other occasions when he was “doing the same thing.” He also
volunteered that he directed Jessica “[n]ot to tell anyone.”
              Lima then asked a series of questions regarding the appearance of
Gallegos’s genitalia. Lima attempted to ask if Gallegos had been circumcised, but also
asked, “how do you say circumcised in Spanish?” Gallegos responded, “That if I
have . . . the skin that comes down.” Lima continued, “That comes down, they did it
when you were a little boy right?” Gallegos then explained that his foreskin burst during
a homosexual encounter in Mexico many years earlier, and after further questioning
Gallegos said he had not been operated on as a child. Lima asked Gallegos to sign a form
confirming his desire to speak with the officers, which Gallegos signed, and Lima asked
if the officers had threatened him “or anything like that?” Gallegos said, “No, why?
[¶] . . . [¶] I’m guilty anyway.”
              Gallegos told Lima and Ribeiro he had consumed two beers earlier that day
and admitted he once drank quite a bit of alcohol, but he denied drinking any alcohol
before the other two times he molested Jessica. Lima asked a series of questions going
over what had happened that night, and Gallegos admitted disconnecting the phone on his
way out of the house, but denied threatening Norma if she called the police. Lima asked

                                             5
if Gallegos had any questions, and Gallegos responded that he needed to go to the
bathroom. After asking a few questions about Gallegos’s height, weight, and eye color,
and confirming Gallegos’s explanation for the tear on his foreskin, Lima concluded the
interview.
              About the same time Gallegos was being interview, Dr. Malinda Wheeler
examined Jessica at the hospital. Her physical examination revealed superficial abrasions
and a fresh bleeding, tear in Jessica’s hymen. Wheeler testified Jessica’s injuries were of
a type generally caused by penetrating, blunt force trauma to the vagina, and that such
injuries would cause pain and discomfort in a pre-pubescent child. Wheeler testified that
only ten percent of sexual assault victims evidence injury, and it is extremely rare to have
visible, bleeding injuries during a sexual assault examination. Wheeler also testified she
did not see any evidence of injury to Jessica’s anus, but that the absence of any visible
injury would not be unusual in cases of anal penetration.
              Four days later, Dr. Sandra Murray examined Jessica. Murray looked for
injuries consistent with digital and penile penetration of the vagina and anus. She also
reviewed the medical report and photographs from Jessica’s hospital exam.
              Murray testified young girls often have a difficult time distinguishing
between penetration of their vagina and anus. However, the injuries to Jessica’s hymen
were consistent with penetrating, blunt force to the vagina. Murray stated, “Seeing the
acute injury in the same place where I’m seeing the healed injury . . . five days later, that
would be highly suspicious of . . . sexual assault and certainly evidence of a penetrating
injury.”
              Murray also testified children evaluated for sexual abuse are routinely
tested for sexually transmitted diseases. In Jessica’s case, the test results indicated
Jessica had an active chlamydia infection. Murray described chlamydia as a bacteria that
is transferred from one person to another during sexual contact or through pregnancy and
childbirth. In the case of transmission through pregnancy and childbirth, Murray testified

                                              6
the infection would resolve itself within three years. Although Norma had chlamydia in
2001, the year Jessica was born, Murray opined the infection Jessica had at the time of
the sexual assault was the result of sexual contact.
              DNA testing was performed on Gallegos and Jessica. Jessica’s DNA could
not be excluded from DNA found on Gallegos’s penis and right thumb. Gallegos’s DNA
was found in Jessica’s vulva.


Pretrial Motion and Hearing
              Prior to trial, both parties filed motions in limine to determine the
admissibility of Gallegos’s statement to police. Gallegos claimed Lima violated his
Miranda rights by failing to get an express waiver of those rights before questioning.
Gallegos also asserted that his statement was involuntarily made by focusing on his
moderate consumption of alcohol and illiteracy in Spanish, and Lima’s limited
understanding of Gallegos’s particular Spanish dialect, Lima’s multiple statements that it
would be better for Gallegos if he told the truth, and the fact Lima obtained Gallegos’s
signature on the Miranda advisement form after Gallegos made some incriminating
statements.
              The prosecution claimed the record demonstrated compliance with Miranda
because Lima explained each of Gallegos’s Miranda rights and Gallegos said he
understood each right and wished to talk to the officers. The prosecution also argued
there was no evidence of coercion or promises of leniency, pointing to Gallegos ability to
function as an adult who was gainfully employed, renting an apartment, and providing for
his family, his general demeanor during the interview, and the fact Lima made no overt
promises of leniency, as evidence Gallegos understood his rights and voluntarily waived
those rights to make a statement.
              The trial court conducted an evidentiary hearing and took Lima’s
testimony. Lima, a 15-year veteran of the Santa Ana Police Department, testified he is a

                                              7
native-born Spanish speaker from Guatemala. He is certified by the Santa Ana Police
Department as a Spanish/English translator at the highest grade level available in the
department. While Lima acknowledged the differences in “dialect and the culture” of
various Spanish-speaking populations in Mexico and Central and South America, he
believed Gallegos understood him throughout the interview.
              Lima said Gallegos had been handcuffed initially, but Ribeiro removed the
handcuffs for the duration of the interview. He instructed Gallegos to indicate whether
he understood his rights, and Gallegos responded affirmatively to each right as explained.
              Lima denied making any promises or threatening Gallegos to obtain his
statement. He acknowledged that Gallegos told him he had consumed two beers that
night, but stated Gallegos did not appear or act intoxicated. According to Lima, the
conversation was clear and Gallegos responded appropriately to each question. He also
noticed that Gallegos seemed to understand some English words because he corrected the
officers understanding at various points.
              At the conclusion of the hearing, the trial court stated she had read the
parties’ point and authorities and the parties’ respective transcripts of the interview. The
defense had relied on In re Shawn D. (1993) 20 Cal.App.4th 200 (Shawn D.), but the
court found this case inapt: “I understand the point you’re making, but you are relying
heavily on the officer’s statement to the defendant that it would be in his favor to tell the
truth. And in Shawn D., the officer made it clearly an either/or. [¶] . . .[¶] This goes
more than one step forward. It goes 2 miles forward.”
              Ultimately, the trial court held, “having looked at the transcript, both of
them. And it wasn’t coercive. It just wasn’t coercive. And the statements that were
made were voluntarily made with full knowledge of what the defendant’s rights were. [¶]
As far as an express waiver is concerned, well, you could have knocked me over with a
feather when the Supreme Court says it’s okay not to get one, but they said it years ago.
So even though your allegation is that there was no express waiver because there was no

                                              8
verbal waiver, the officer’s testimony I think is credible that there was some indication by
demeanor or a nod of the head that that was a waiver . . . an express waiver is not
necessary for the statements to be determined to have been voluntarily made.”


                                       DISCUSSION


              The trial court denied Gallegos’s motion to exclude his postarrest
statement, and Gallegos argues the trial court violated his rights under Miranda and the
Fifth Amendment by admitting his confession at trial. We disagree.
              “In reviewing Miranda issues on appeal, we accept the trial court’s
resolution of disputed facts and inferences as well as its evaluations of credibility if
substantially supported, but independently determine from undisputed facts and facts
found by the trial court whether the challenged statement was legally obtained.
[Citations.]” (People v. Smith (2007) 40 Cal.4th 483, 502.)
              According to the record, Lima explained each of Gallegos’s rights under
Miranda. Gallegos affirmatively responded that he understood each of these rights, and
then he indicated a willingness to talk to the officers. Lima did not exact an express
waiver of rights. However, Gallegos nodded his head in agreement when asked if he
wanted to talk and then answered the officers’ questions.
              While an implied waiver is sufficient to satisfy the constitutional standard
(Berghuis v. Thompkins (2010) 560 U.S.370, __ [130 S.Ct. 2250, 2259-2262]), the record
must establish Gallegos understood his rights and acted in a manner consistent with a
voluntary waiver. “As a general proposition, the law can presume that an individual who,
with a full understanding of his or her rights, acts in a manner inconsistent with their
exercise has made a deliberate choice to relinquish the protection those rights afford.”
(Id. at p. ___ [130 S.Ct. at p. 2262].) In sum, when “the prosecution shows that a



                                              9
Miranda warning was given and that it was understood by the accused, an accused’s
uncoerced statement establishes an implied waiver of the right to remain silent.” (Ibid.)
               To determine if Gallegos fully understood and validly waived his Miranda
rights, we consider factors such as the presence or absence of false promises or coercion
by the police, the duration and location of the interrogation, and the defendant’s age,
education, and mental health. (People v. Williams (1997) 16 Cal.4th 635, 660-661; see
also People v. Thompson (1990) 50 Cal.3d 134, 167.) We consider these factors in light
of the totality of the circumstances. (People v. Lewis (2001) 26 Cal.4th 334, 383-384.)
               Gallegos argues Lima coerced his statement by saying it would be better for
Gallegos to tell the truth. However, a mere suggestion “that it would be better to tell the
truth, when unaccompanied by either a threat or a promise, does not render a confession
involuntary. [Citation.]” (People v. Davis (2009) 46 Cal.4th 539, 600.) Lima suggested
it would be better to tell the truth, and Gallegos in essence agreed. There is no evidence
of badgering, implied promises of leniency, or deception on the part of either police
officer involved in the interview.
               Gallegos’s heavy reliance on Shawn D., supra, 20 Cal.App.4th 200 is
misplaced. In Shawn D., the officer was conducting a three-hour interrogation of a 16
year old suspected of burglary. He repeatedly told the minor, among other things, that he
was putting his girlfriend in a precarious situation and the officer did not want to see her
get in trouble. (Id. at p. 207.) The officer also said the police report would reflect
whether or not the defendant was cooperative, and within the context of the defendant
being tried as an adult, the officer indicated, “‘Seriously, you help us get the stuff back
and I will personally talk to the [district attorney] or persons who do the juvenile.’” (Id.
at pp. 204-207.) The appellate court held the confession was involuntary because “[t]he
promise of leniency in exchange for a confession permeated the entire interrogation.”
(Id. at p. 216.)



                                              10
              The differences between the present case and Shawn D. are patent and
numerous. Lima suggested truthfulness would be best. He did not insist on a confession,
promise Gallegos anything for his statements, or use some type of ruse to loosen
Gallegos’s tongue. This case does not involve coercion, the forceful overbearing of
Gallegos’s will, or false promises of some benefit attached to his confession.
              As for illiteracy and the fact Gallegos was born in Mexico, we also note
that Gallegos was 36 years old, employed, and supporting a family of six. Nothing in the
record suggests Gallegos was unintelligent, mentally deficient, or incapable of
understanding his rights. Furthermore, nothing supports Gallegos claims of intoxication.
To the contrary, the DVD of the interview shows a man who appears sober and relaxed
and who responds appropriately to questions.
              Gallegos’s reliance on Hutto v. Ross (1976) 429 U.S. 28 (Hutto) is also
misplaced. As the Hutto court observed, the only question there was “whether a
confession is per se inadmissible in a criminal trial because it was made subsequent to an
agreed upon plea bargain that did not call for such a confession.” (Id. at p. 30.) This
case does not involve a confession made pursuant to plea bargain, and there is no
evidence Lima promised Gallegos anything in exchange for his statement. (See id. at
p. 30.)
              Finally, nothing in the DVD or written transcripts supports the conclusion
Gallegos misunderstood Lima. In fact, the purported confusion about circumcision
actually demonstrates the opposite. Gallegos understood Lima well enough to tell him
how he tore his foreskin, thus evidencing some comprehension of the word Lima had
trouble translating. When the record is viewed as whole, Lima’s questions engendered an
appropriate response by Gallegos. In other word, there is no evidence Gallegos
misunderstood Lima, or had trouble comprehending what Lima sought to convey.
              As the evidence supports the trial court’s determination Gallegos made an
implied waiver of his Miranda rights, and as there is no evidence that his “‘will was

                                            11
overborne’” at the time he confessed (People v. Cruz (2008) 44 Cal.4th 636, 669),
Gallegos’s claims that his confession was involuntary and violated Miranda are rejected.


                                    DISPOSITION


             The judgment is affirmed.



                                                THOMPSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



MOORE, J.




                                           12
