Filed 5/3/16 P. v. Tovar CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069321
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12908404)
                   v.

SALOME ANAYA TOVAR,                                                                      OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.
         Janet J. Gray, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Daniel
B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       A jury convicted Salome Anaya Tovar (defendant) of first degree burglary (Pen.
Code,1 §§ 459, 460, subd. (a)), but was unable to reach a verdict on the charge he
committed a lewd act on a child (§ 288, subd. (a)).2 Defendant admitted having suffered
two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) that were
serious felonies (§ 667, subd. (a)(1)). The trial court subsequently struck one of the prior
convictions, sentenced defendant to a total term of 17 years in prison, and ordered him to
register as a sex offender. On appeal, we hold defendant’s statement to police was
properly admitted at trial, any error in admitting the victim’s statements to police under
Evidence Code section 1360 was harmless, and defendant was properly ordered to
register as a sex offender. Accordingly, we affirm.
                                          FACTS
                                              I
                                PROSECUTION EVIDENCE
       On the night of October 17, 2012, 11-year-old A.Z. was sleeping next to her twin
sister, S.Z., with whom she shared a bedroom. The bedroom had a door to the backyard.
Because the door would not lock, a small nightstand was kept up against it.
       That night, A.Z. woke to find defendant sitting on her bed. She had seen
defendant before; he slept in a partially enclosed area behind Claudia Ruiz’s house next
door. The girls’ mother, J.Z., sometimes invited defendant over to eat. She let him in to
use the bathroom once or twice. He was not allowed in A.Z.’s bedroom, however, and
entered the house through the door that opened into the kitchen. J.Z. was the only person
allowed to give him permission to enter the house. A.Z. was scared of him. Defendant
had previously told A.Z. that she and her sister were very pretty. Once when the sisters



1      All statutory references are to the Penal Code unless otherwise stated.
2      A mistrial was declared, and this charge ultimately was dismissed.


                                             2.
were at a park with some friends for their brother’s birthday party, defendant drove by in
his truck and S.Z. heard him say A.Z. was pretty.
       Although it was dark, A.Z. was able to see defendant. He was looking through her
backpack.3 He turned and looked at her and tried to hide by the bed. She did not say
anything, but tried to get up to go to the rest room, which had a door that locked.
Defendant grabbed her shoulders and pushed her back onto the bed. She tried to move,
but he was holding her too tightly by the arms.
       Defendant then lay down next to A.Z. on the left side of the bed. S.Z. was on
A.Z.’s right side. He tried to get A.Z. to leave the house with him. He said something
about her being pretty. Defendant then put his arms under the covers. He rubbed A.Z.’s
vagina over the shorts she was wearing and one of her breasts over her shirt. It scared her
and made her feel bad, because she was a little girl. He covered her mouth with his other
arm. She told defendant to stop and to get away, but he did not stop. She tried to push
him off a few times, but he was stronger than her and did not stop. He said he had a
pocket knife and was not afraid to use it. At some point, he whispered that if she would
not tell, he would give her $100 each week.
       A.Z. grabbed her sister’s hand and squeezed “[r]eally hard” to wake her up. At
first, S.Z. did not see anything, so she just lay there. Then she heard defendant say, in
Spanish, “Let me lick your pussy. It will feel good.” S.Z. knew it was defendant,
because, although it was dark in the room, there was enough light for her to see the red
hat he always wore. S.Z. could see defendant lying on the bed and touching A.Z.’s
breasts and vagina over A.Z.’s clothing.4 S.Z. heard A.Z. tell defendant to leave her
alone, but he said he wanted to be her man and she was going to be his lady.


3      Neither girl ever discovered anything was missing from their room.
4     S.Z. believed the touching of the breast came first. She did not think A.Z. was
covered in blankets.


                                              3.
         S.Z. stood up and told defendant to get out. She did not yell, because she did not
want to wake her brothers. Defendant said not to tell her mother and he would get out
and get the girls whatever they wanted. S.Z. said okay, and defendant left through the
back door.
         The girls ran to their mother’s room, and told her defendant had come into the
house and touched A.Z. S.Z. was very excited and either crying or screaming. She said
defendant did not want to leave and had grabbed A.Z.5
         J.Z. ran outside to find defendant, because she did not know if he was still there.
She took the phone with her and was already calling the police as she was running out of
the house. She found defendant lying very calmly, but awake, in his hut. She told him
what S.Z. had told her and asked how it was possible he could have done that, since he
had previously told J.Z. that if she ever had a problem with someone wanting to touch her
daughters, she should call him and he would check and see what was happening. He had
said he was against people who touched children. He had previously told her, “I’m sorry,
bitch, but your girls are really cute.”6
         J.Z. asked him what had happened and why he had gone in to touch her daughters.
Defendant said, “Well, bitch, forgive me, but your daughters are really pretty.” She
asked why he did it, as they were just children. He replied, “No, bitch. Those are fully
formed women. They’re already fully developed.”7 He also said, “Don’t call the police.
That’s not ever going to happen again.”




5        J.Z. recalled that only S.Z. came into the room at first. A.Z. came to the room
later.
6        Defendant was accustomed to calling J.Z. and Ruiz “bitch.”
7        S.Z. recalled him saying the girls were “perfect ladies.”


                                               4.
       Defendant got into his truck to try to leave, and J.Z. told the police to hurry.
When she tried to stop defendant, he pushed her. She tried to keep him from getting into
his truck, then the police arrived, pulled him out of the truck, and set him on the curb.
       Police were dispatched to J.Z.’s home at approximately 11:11 p.m., in response to
a call of a known subject who had been in a residence and reportedly molested the
daughters. Sergeant Sherrot of the Reedley Police Department arrived around 11:15 p.m.
to find Officer Moles already on the scene, talking to a man and woman outside. Moles
frisked the man — defendant — for weapons and contraband, then asked Sherrot to
watch defendant while Moles talked to other people who were involved.8
       Defendant sat on the curb, while Sherrot simply stood by him, as defendant was
detained. Sherrot noticed the front zipper of defendant’s pants was down. Defendant
was wearing a hat.
       Sherrot subsequently went into the girls’ bedroom. He observed a small dresser
inside. It was partially in front of the door that went from the bedroom into the backyard.
The dresser was approximately six to eight inches from the door. Sherrot, who was five
feet 10 inches tall and weighed about 200 pounds, had to move the dresser before he
could go out through the door to look at defendant’s living area. Sherrot was wearing his
ballistic vest, gun, Taser, and duty belt with his radio, baton, and various tools. If he had
not been wearing his gear, he probably could have gotten out of the door without moving
the dresser. The dresser was not heavy.
       Officer Kincaid of the Reedley Police Department was the primary officer in the
investigation. He arrived on scene shortly after 11:00 p.m. He went through the house,
and spoke to A.Z. for three or four minutes. She was upset, but, when asked if she saw
the person who touched her in the area, said, “That’s Salome, right over there on the curb


8     No weapons, items stolen from the residence, or other items were removed from
defendant.


                                              5.
wearing the red hat.” Kincaid placed defendant in custody and transported him to the
Reedley Police Department.
       Kincaid interviewed A.Z. at the police department around midnight. He spoke to
her once, interviewed S.Z., and then talked to A.Z. further.9
       A.Z. was shy and nervous. During the first portion of the interview, she related
that she and S.Z. were sleeping on A.Z.’s bed when defendant entered by way of the door
that went to the backyard. It did not lock. A.Z. woke to find him sitting on the edge of
her bed, looking in her backpack and at her binder. He tried to hide, but when she stood
up to go to the rest room, he grabbed her and put her back on the bed and started touching
her body. She pulled the covers over herself, but he touched the private parts of her chest
over her clothes. He “squish[ed]” one of her breasts with his hand. He also rubbed her
vagina over her clothing. He was lying beside her and she was pushing him and telling
him to get out, but he did not want to.
       A.Z. related that she squeezed S.Z.’s hand to wake her up. At this time, defendant
was squeezing A.Z. She could not tell if he had all his clothes on or was touching
himself. S.Z. told defendant to “get the hell out” of the house or she would tell their
mother. He agreed to go after asking her to promise not to tell. He then left, and the girls
went to tell their mother.
       When Kincaid interviewed S.Z., S.Z. seemed uncomfortable and upset or mad.
S.Z. told Kincaid that when she woke, she heard defendant say, “Let me lick your pussy.
It will feel so good.” She also related seeing defendant touch A.Z.’s breast and “down
low” over A.Z.’s clothing. When S.Z. referred to “down low,” she pointed to her vaginal
area. S.Z. said that during their brother’s birthday party at the park across the street from




9       Video recordings of both portions of the interview were played for the jury. Both
girls testified at trial that they told Kincaid the truth.


                                             6.
their house, defendant drove by and told A.Z. he loved her, she was pretty, and she was
going to be his lady forever.
        During the second portion of the interview, A.Z. told Kincaid she did not see
defendant come into her room or hear the door open. She did not remember if he said
anything to her while he was touching her. He had never tried to touch her before. He
told her some things, but she did not remember. She never felt that comfortable around
him, because every time she was outside with her uncles and family, defendant would
walk up and down, looking at what they were doing. A.Z. denied defendant said
something to her at her brother’s birthday party. A.Z. said she did not go to the park,
although her sister, her mother, and some of her cousins did. A.Z. was at the house,
helping out. She did not remember if defendant drove by the house and told her
anything. The only time he ever told her she was beautiful or he wanted her to be his
lady was while he was touching her.
        Kincaid also interviewed J.Z., Ruiz, and defendant that night. As far as he knew,
each interview was recorded. He subsequently discovered that the final five minutes or
so of his interview with defendant, who was the last person he interviewed, was not
captured on the recording device for unknown reasons.10
        During the recorded portion of the interview, defendant denied that anything
happened. He explained that he went into the house just to talk to the girls, “to pay
attention.” He knew J.Z. did not like him. Saturday, she left in the morning. The girls
spent all day Thursday inside their room. Defendant did not think it was right. When
their mother came back, if he said anything, she told him to shut up. He claimed one of
the girls had a boyfriend, and they had opened the door so boyfriends could come into the




10      The portion of the video recording of the interview that existed was played for the
jury.


                                             7.
house. He entered the house to use the rest room. When he went in, he sat on the floor.
The girls were not sleeping.
       Defendant told Kincaid that he was talking to the girls about boyfriends because it
was something with which to start a conversation. Defendant admitted previously telling
A.Z. he loved her, but he explained it was love like he felt for his nephews and family.
He never said she was going to be his lady. He told her he loved her, and maybe one day
she would want to marry him when she was bigger. She was not going to marry him,
though, because he was too old. He only said that when she was nervous or complaining
about her mother. Defendant admitted telling A.Z. a number of times that she was
beautiful, but denied asking either girl to go to his living area.
       Defendant denied getting on the bed. He explained his “thing” did not work
anymore. He did not go inside because he was going to do something. When Kincaid
said he would take defendant’s clothes to see if there were fibers from the blanket on
them, defendant conceded he sat down on the bed. He denied lying down. He claimed
he and A.Z. only talked. Defendant subsequently admitted he lay on the bed, but denied
doing anything. He told Kincaid that one day, A.Z. would treat defendant like a man.
However, he did not touch her other than to give her a hug. They only talked about the
two boys defendant saw go inside. Defendant talked to both girls.
       The recorded portion of the interview ended at this point. During the part that did
not record, Kincaid asked whether, if they ran DNA tests on A.Z.’s clothing, they would
find anything. Defendant said he put his hands up, and he made a motion with the palms
of his hands touching A.Z.’s breasts. Defendant said he just put his hands up against her,
and he expressed that it was in a nonsexual way. He denied touching A.Z.’s vagina or
touching her in a sexual way. He made some type of reference to being too old.11


11     Defendant was 59 years old at the time of the interview. Kincaid estimated his
height at five feet eight inches and his weight at about 165 pounds.


                                               8.
Kincaid asked about a statement defendant made to J.Z. at the scene, when she asked why
he was in her daughters’ room. Defendant told Kincaid he said, “Your daughters are
beautiful and I’m a man.” Defendant explained he said that to upset her, because she had
done something to cause a problem with him and his daughter or wife in the past.
                                            II
                                   DEFENSE EVIDENCE
       Sometime before this case, there was a gathering in front of Ruiz’s house.12 A.Z.
walked by. Ruiz heard her say to some children that she could not play, because she was
in trouble. A.Z. said her mother had beat her up because she did something at school.
A.Z. said she had bruises on her legs.13
       Celia Alderete was the defense investigator assigned to this case. She met with
J.Z. on January 15, 2014. Although J.Z. permitted her to photograph the house, she
denied Alderete’s request for permission to interview A.Z. and S.Z.
       Alderete spoke to Ruiz on July 9, 2013, and again on March 6, 2014. Although
the July 2013 interview was fairly detailed, Ruiz said nothing about overhearing a
statement by A.Z. until the March 2014 interview, which took place the week before
Alderete testified.




12     Defendant was Ruiz’s stepfather. Ruiz, who had four children, did not allow
defendant to sleep inside her house. He could enter the residence any time he wanted in
the daytime, but she kept her doors locked at night, and he had to knock on a door or her
window if he needed to use the bathroom or anything.
13     During her testimony, A.Z. denied that her mother ever hit her with a stick or
caused bruises. S.Z. testified that her mother never hit A.Z. or hurt either girl. J.Z.
denied hitting A.Z. on the legs and bruising her, or that defendant expressed concerns
about her physically abusing her children.


                                            9.
                                      DISCUSSION
                                              I
                  ADMISSION OF DEFENDANT’S STATEMENT TO POLICE
       Defendant contends the trial court erred by admitting defendant’s statement to
Kincaid. He says that, in light of his difficulties with the English language, the statement
was obtained without a knowing and intelligent waiver of the Miranda advisements.14
We disagree.
A.     Background
       The prosecutor moved, in limine, to admit defendant’s video-recorded statement
into evidence. In pertinent part, the prosecutor asserted defendant’s implied waiver of
rights was knowing, intelligent, and voluntary, despite defendant’s claimed difficulties
with the English language.15
       An Evidence Code section 402 hearing was held on the motion. The recorded
portion of the interview was played for the court. According to the written transcription,
the following took place at the outset of the interview, as Kincaid was removing
defendant’s handcuffs:

               “O [Kincaid]: Put your hands back a little bit. There you go.

               “S [defendant]: (Inaudible)



14     Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
       In his opening brief, defendant refers to the voluntariness of his statement and the
standard of prejudice applicable to the erroneous admission of an involuntary confession.
Given his argument as a whole and the facts of this case, we understand him to be
addressing voluntariness in the context of his waiver of rights, as opposed to claiming his
statement was involuntary because it was the product of coercion or overreaching by the
police (see generally Jackson v. Denno (1964) 378 U.S. 368, 371, 376-377; People v.
Benson (1990) 52 Cal.3d 754, 778-779), and we tailor our discussion accordingly.
15    The prosecutor also addressed the fact a portion of defendant’s statement was not
recorded. Defendant does not now claim error based on the partial recording.


                                             10.
       “O: Mm?

       “S: You boss going to come?

       “O: My boss, no he’s not coming in.

       “S: No?

       “O: No.

       “S: Why?

       “O: What, why is he going to come in for?

       “S: No (inaudible)

      “O: Oh okay. But why, he’s not coming in. Why you want to talk
to him?

       “S: Yeah maybe (inaudible) okay.

       “O: Alright here’s the deal. Just relax. You speak English right?

       “S: (Inaudible).

        “O: Kay. You have the right to remain silent, anything you say can
and will be held against you in a court of law. You have the right to talk to
a lawyer and have them present with you while you’re being questioned. If
you can not afford to hire a lawyer, one will be appointed to represent you
before any questioning, if you wish. You can decide at any time to exercise
these rights without answering any questions or make any statements. Do
you understand the rights I have explained to you?

       “S: Yes.

       “O: Kay. Having these rights in mind, do you wish to talk to me?

       “S: What happened?

       “O: Do you (clears throat) Do you wish to talk to me?

       “S: About what? (Inaudible)

       “O: I’m going to talk to you about what happened tonight.

       “S: Yeah. I talk to you guys already.



                                     11.
             “O: Mm hm.

              “S: About the, the lady, she don’t want me here. Believe me,
      because she’s (inaudible) She went with somebody else (inaudible). And
      she, I saw that, that one month ago . . .

             “O: Mm hm.

             “S: In, in that (inaudible) took you know (inaudible).

            “O: Okay but we’ll talk about that later. Let’s talk about what
      happened tonight.

              “S: Nothing happened. Nothing happened. I just talk to the, the
      girls to pay attention (inaudible) because I know she no like me. . . .”
      Kincaid testified defendant never said he did not want to talk about what happened
and never asked for a lawyer. During the interview, defendant used Spanish slang a few
times. When Kincaid advised defendant of his Miranda rights and defendant said “Yes,”
he understood (according to the transcript), Kincaid believed he said “Yes” in Spanish, to
wit, “[S]i.” Although some of defendant’s answers did not make sense in terms of the
question asked, it was “obvious” to Kincaid that defendant knew how to speak and
understand English. Kincaid acknowledged a Spanish interpreter was available to assist
in the interview; however, Kincaid felt comfortable speaking to defendant, and “when he
said he felt comfortable speaking English, that he understood English,” it made Kincaid
feel comfortable on defendant’s behalf as well. At no time during the interview did
defendant ask for an interpreter or say he did not understand English. Had defendant
asked for an interpreter, Kincaid would have gotten him one. Kincaid conceded he did
not recall how defendant responded to the question, “You speak English, right?” It was
an affirmative answer, however, and Kincaid felt comfortable with the answer. When
Kincaid asked defendant to put his hands behind his back a little, which occurred when
Kincaid was removing the handcuffs, defendant complied with Kincaid’s request. Before
Kincaid asked any questions, defendant started speaking to Kincaid in English and asking
about Kincaid’s boss.


                                           12.
       Defense counsel argued defendant’s statement was not given knowingly,
intelligently, and voluntarily, as he was not sufficiently fluent in English. Counsel argued
it was clear defendant had problems answering a number of Kincaid’s questions and gave
responses that were unintelligible and unresponsive to the questions. Counsel asserted
defendant did not understand his rights, and noted that when Kincaid asked a long
question that contained the description of four rights and asked if defendant understood,
defendant replied in Spanish.
       The court remarked that despite Kincaid’s recollection that defendant said “[S]i,”
the court recalled hearing the answer in English. Defense counsel stated his notes
reflected defendant responded “[S]i.” After a portion of the recording was replayed, the
court stated that the answer to Kincaid’s question whether defendant spoke English,
which was transcribed as “inaudible,” “may have been something other than ‘yes,’
whether it was ‘si’ or some other verbal expression. But as far as the answer to ‘Do you
understand these rights I have explained to you,’ the answer is clearly, in [the court’s]
observation, ‘yes’ in English.” The court further observed that before there was even an
advisement, there was “a clear dialogue in English” where defendant engaged Kincaid in
that dialogue. The court also found defendant’s physical gestures and attentiveness
showed he was paying attention to what Kincaid was saying.
       Defense counsel argued that fluency in the English language was fundamental to
being able to give a knowing and intelligent waiver of rights, and that defendant’s
answers did not respond intelligently to Kincaid’s questions. The court disagreed,
finding defendant’s replies made sense when the totality of the statement was considered.
The court agreed that fluency and comprehension were fundamental to an individual’s
making a voluntary and informed waiver of his or her constitutional rights, but noted the
video showed body language and a number of physical gestures — defendant even
getting up, at one point, to demonstrate — which, along with the words, showed the
responses were reliable.

                                             13.
       Defense counsel noted that, when asked if he wished to talk to Kincaid, defendant
responded by asking “[w]hat happened” and then “[a]bout what.” Counsel argued there
was no waiver of defendant’s rights, either explicit or implied. The prosecutor responded
that defendant never said he did not understand; moreover, when asked if he understood
his rights, defendant audibly answered “yes” and also nodded his head affirmatively. The
prosecutor argued there clearly was an implied waiver of rights, and that defendant never
then invoked his rights.
       The court found defendant would have benefited from the assistance of an
interpreter, and noted he was being assisted by one in court. The court found it clear,
however, that during the interview, although defendant appeared to have some limitations
with some of the usage of his words, he listened to his rights as Kincaid read them and,
when asked if he understood, said yes. The court found no rule defendant had to say
expressly that he wanted to talk to Kincaid, but found the fact he went straight into
conversation to imply he was agreeable to continuing to talk. The court further noted that
at no time did defendant say he did not wish to speak or wanted to stop. The court
concluded: “I don’t find that his waiver of those rights was anything other than voluntary
and with full knowledge of what was being explained to him.” Accordingly, it declined
to exclude defendant’s statement to Kincaid on Miranda grounds.
       As previously stated, the video recording of defendant’s statement to Kincaid was
played for the jury.
B.     Analysis
       The Fifth Amendment to the United States Constitution guarantees that a suspect
in a criminal case “may not be compelled to be a witness against himself in any respect.”
(Colorado v. Spring (1987) 479 U.S. 564, 574.)16 To implement this “prohibition against
compelled self-incrimination” (People v. Mickey (1991) 54 Cal.3d 612, 647), the United

16     Article I, section 15 of the California Constitution contains the same guarantee.


                                            14.
States Supreme Court in Miranda devised the following “prophylactic” rule (Michigan v.
Tucker (1974) 417 U.S. 433, 446): “[T]he prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination. . . . Prior to any questioning, the person must be warned that
he has a right to remain silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an attorney, either retained or
appointed.” (Miranda, supra, 384 U.S. at p. 444, fn. omitted.)
       “Miranda holds that ‘[the] defendant may waive effectuation’ of the rights
conveyed in the warnings ‘provided the waiver is made voluntarily, knowingly and
intelligently.’ [Citation.] The inquiry has two distinct dimensions. [Citations.] First, the
relinquishment of the right must have been voluntary in the sense that it was the product
of a free and deliberate choice rather than intimidation, coercion, or deception. Second,
the waiver must have been made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it. Only if the ‘totality
of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and
the requisite level of comprehension may a court properly conclude that the Miranda
rights have been waived. [Citations.]” (Moran v. Burbine (1986) 475 U.S. 412, 421;
accord, People v. Smith (2007) 40 Cal.4th 483, 501-502.)
       The question whether a waiver is knowing and voluntary focuses on an evaluation
of the defendant’s state of mind. (People v. Sauceda-Contreras (2012) 55 Cal.4th 203,
218.) “Once it is determined that a suspect’s decision not to rely on his rights was
uncoerced, that he at all times knew he could stand mute and request a lawyer, and that
he was aware of the State’s intention to use his statements to secure a conviction, the
analysis is complete and the waiver is valid as a matter of law.” (Moran v. Burbine,
supra, 475 U.S. at pp. 422-423, fn. omitted.) “After a knowing and voluntary waiver,



                                             15.
interrogation may proceed ‘ “until and unless the suspect clearly requests an attorney.” ’
[Citation.]” (People v. Dykes (2009) 46 Cal.4th 731, 751.)
       “[A] suspect who desires to waive his Miranda rights and submit to interrogation
by law enforcement authorities need not do so with any particular words or phrases. A
valid waiver need not be of predetermined form, but instead must reflect that the suspect
in fact knowingly and voluntarily waived the rights delineated in the Miranda decision.
[Citation.]” (People v. Cruz (2008) 44 Cal.4th 636, 667; see North Carolina v. Butler
(1979) 441 U.S. 369, 373.) “A valid waiver may be express or implied. [Citation.]
Although it may not be inferred ‘simply from the silence of the accused after warnings
are given or simply from the fact that a confession was in fact eventually obtained’
[citation], it may be inferred where ‘the actions and words of the person interrogated’
clearly imply it. [Citation.]” (People v. Cortes (1999) 71 Cal.App.4th 62, 69; see North
Carolina v. Butler, supra, 441 U.S. at p. 373.) As the United States Supreme Court has
stated: “Where the prosecution shows that a 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.” (Berghuis v. Thompkins (2010) 560 U.S. 370, 384;
see People v. Sauceda-Contreras, supra, 55 Cal.4th at pp. 218-219 [suspect’s expressed
willingness to answer questions after acknowledging understanding of Miranda rights
sufficient to constitute implied waiver of such rights].)
       The prosecution has the burden of demonstrating the validity of a defendant’s
Miranda waiver by a preponderance of the evidence. (Colorado v. Connelly (1986) 479
U.S. 157, 168; Lego v. Twomey (1972) 404 U.S. 477, 489; People v. Dykes, supra, 46
Cal.4th at p. 751.) “In reviewing the trial court’s denial of a suppression motion on
Miranda . . . grounds, ‘ “ ‘we accept the trial court’s resolution of disputed facts and
inferences, and its evaluations of credibility, if supported by substantial evidence. We
independently determine from the undisputed facts and the facts properly found by the
trial court whether the challenged statement was illegally obtained.’ ” ’ [Citations.]

                                             16.
Where, as was the case here, an interview is recorded, the facts surrounding the
admission or confession are undisputed and we may apply independent review.
[Citation.]” (People v. Duff (2014) 58 Cal.4th 527, 551.) To this end, we have had the
video recording of defendant’s interview with Kincaid transmitted to us, and have viewed
it.17 “While we must review the record and make an independent determination of the
question, we, like the United States Supreme Court, may ‘give great weight to the
considered conclusions’ of a lower court that has previously reviewed the same evidence.
[Citation.]” (People v. Jennings (1988) 46 Cal.3d 963, 979.) Having viewed the video
recording and observed defendant’s interaction with Kincaid, we, like the trial court,
conclude defendant’s implied waiver of his Miranda rights was valid. Hence, his
statement was properly admitted at trial.
       The voluntariness of defendant’s waiver is clear. “[T]he record is devoid of any
suggestion that [Kincaid] resorted to physical or psychological pressure to elicit
statements from defendant. To the contrary, defendant’s willingness to speak with
[Kincaid] is readily apparent from his responses. He was not worn down by improper
interrogation tactics, lengthy questioning, or trickery or deceit. [Citations.] He was not
induced to provide his statement[] by improper promises.” (People v. Whitson (1998) 17
Cal.4th 229, 248-249; see Moran v. Burbine, supra, 475 U.S. at pp. 421-422.)
       The question is whether defendant’s waiver was knowing and intelligent. This
turns, in large part, on whether the Miranda advisements, which undisputedly were given
by Kincaid, were understood by defendant. (See Berghuis v. Thompkins, supra, 560 U.S.
at p. 384.) After viewing the video recording (which gives a much different and more

17     Appellate counsel relies on the fact the statement was recorded to assert this court
must independently review the trial court’s determination. Insofar as the record on
appeal shows, however, counsel failed to take the requisite steps to have the recording
transmitted to this court. (See Cal. Rules of Court, rules 8.224(a)(1), 8.320(e).)
Although we were not required to do so, we directed the superior court to send us the
exhibit. (Id., rule 8.224(d).)


                                            17.
complete depiction of defendant’s interaction with Kincaid than does the written
transcript), we agree with the trial court that although defendant had some language
limitations where English was concerned and would have benefited from the assistance of
an interpreter, he understood his rights and waived them with “full knowledge of what
was being explained to him.”18
      While Kincaid did not individually state or explain each right to defendant,
defendant had extensive prior experience with the criminal process.19 (Compare People
v. Hawthorne (2009) 46 Cal.4th 67, 88, overruled on another ground in People v.
McKinnon (2011) 52 Cal.4th 610, 637-643 with U.S. v. Garibay (9th Cir. 1998) 143 F.3d
534, 538-539.) Defendant never asked for an interpreter. Significantly, we do not find
defendant’s answers to the questions whether he wished to talk to Kincaid (“What
happened?” and “About what?”) to be nonresponsive or to show a lack of
comprehension; rather, defendant clearly was eager to give his version of events and
attempt to persuade Kincaid nothing improper took place. (See People v. Hawthorne,
supra, 46 Cal.4th at pp. 87-88.) That Kincaid sporadically had to explain a word, such as


18     Our viewing of the video recording showed, in pertinent part, that while defendant
answered “Si” to Kincaid’s question whether he spoke English, he also nodded
affirmatively. When Kincaid asked if defendant understood his rights, defendant
responded “Yes” and again nodded affirmatively. In addition, we question whether,
when Kincaid first asked if, having his rights in mind, defendant wished to talk to him,
defendant answered “What happened?” as shown in the transcription of the recording.
We think defendant said, “Pardon me?” which is consistent with Kincaid raising his voice
somewhat when he repeated his question. Because we cannot be certain, however, our
analysis assumes the transcription is correct on this point.
19     According to the probation officer’s report, defendant had two felony and five
misdemeanor cases pending, and a criminal record that dated back to 1976 and included a
1990 conviction for attempted murder and a 1996 conviction for felony domestic
violence. At the time it ruled on the Miranda issue, the trial court was aware, through
motions in limine, of at least a portion of defendant’s prior record. The trial court was
also aware Kincaid had referred, at the preliminary hearing, to dealing with defendant in
the past, with the implication being he previously had arrested defendant.


                                           18.
“fiber,” or that defendant occasionally used a basic Spanish term, such as “pero” and
“desde,” does not change this, since the video recording shows no indication either man
had trouble understanding what the other was saying. (See U.S. v. Rodriguez-Preciado
(9th Cir. 2005) 399 F.3d 1118, 1127-1128.)
       Language difficulties encountered by a defendant during custodial interrogation
are “one factor” to be considered in determining whether a defendant knowingly and
intelligently waived his or her Miranda rights (U.S. v. Garibay, supra, 143 F.3d at
p. 537), but, at least where, as here, those difficulties are not so extreme as to impede
understanding, they are not dispositive (see U.S. v. Rodriguez-Preciado, supra, 399 F.3d
at pp. 1127-1128). The record before us supports a finding defendant was sufficiently
proficient in English to have validly waived his rights, and it contains absolutely no
suggestion defendant had a low IQ or other mental capacity or comprehension problem
that may have adversely affected his ability to understand his rights and/or assess the
consequences of waiving them and speaking to Kincaid. (Cf. U.S. v. Garibay, supra, 143
F.3d at pp. 537-539 & fn. 6.)
       Having considered the totality of the circumstances surrounding defendant’s
interrogation and the recording thereof, we conclude defendant understood and implicitly
waived his rights. Accordingly, his statement was properly admitted at trial.
                                              II
                     ADMISSION OF A.Z.’S STATEMENTS TO POLICE
       Defendant contends the trial court erred by admitting the statement A.Z. made to
Kincaid at the police station on the night of events. Defendant says (1) the statement was
unreliable due to leading and suggestive questioning, and (2) A.Z.’s trial testimony was
rendered fundamentally unreliable as a result of the memory-altering interview
techniques, and so its admission violated due process. We find no basis for reversal.




                                             19.
A.     Background
       As set out in the statement of facts, ante, Kincaid interviewed A.Z. and S.Z. at the
Reedley Police Department on the night of the incident. Those interviews were
videotaped. The prosecutor moved, in limine, for admission of the recording of A.Z.’s
interview pursuant to Evidence Code section 1360. The court decided to hold a hearing
on indicia of reliability, as provided in subdivision (a) of the statute.
       After the trial court viewed the video recording of A.Z.’s statement, it noted there
were some areas that were objectionable. Defense counsel objected to any of the
statement being played for the jury, however. He argued there were numerous instances
in which Kincaid led A.Z. to the responses he wanted, and so the circumstances in which
the statement was obtained did not constitute indicia of reliability.20 Counsel argued
A.Z. “succumb[ed] to what the officer wanted to hear,” and the fact the officer was in full
uniform and the interview was conducted in a police setting indicated a child would not
be free to give her account of what transpired; hence, the statement was not reliable. The
prosecutor responded that although the multi-disciplinary interview consortium might be
the preferred method of obtaining and presenting the interviews of young witnesses, it
was not required by statute. He urged the court to analyze the totality of the
circumstances, and argued that while Kincaid may have clarified responses at times, he
did not lead A.Z. through the interview.
       The trial court stated:

       “[I]t’s this Court’s belief that the preferred method of interviewing younger
       witnesses would be through the multi-disciplinary consortium . . . . But it
       appears this officer interviewed this witness fresh to the date of the actual
       incident, meaning hours after the incident had come to light. Certainly, that
       is in and of itself a factor of reliability and opportunity to not have


20      Defense counsel also objected that the prosecution did not provide adequate notice
of its intent to offer the statement into evidence. As defendant does not repeat this claim
on appeal, we do not discuss it further.


                                              20.
       individuals come together and present a coached or rehearsed statement.
       Instead, much more of a fresh perspective from the witness’s point of view
       and or the perceptions of what the witness observed and experienced.

               “The witness will be available to testify, so there’s no issue about the
       witness not being able to testify. . . . And, in fact, the testimony will have
       to proceed in this Court’s opinion before any introduction of the video . . . .
       There is sufficient indicia of reliability for the reasons I’ve just stated. The
       timing soon after the incident. Not allowing any opportunities for the
       mother or the witness’s sister that was in the same room at the time of this
       incident to come together and collaborate their statements. The fact that the
       officer was questioning the witness. As I watched the witness there were,
       actually, times when the witness nodded in affirmative and . . . it was not
       actually caught with the transcript even before the Court. And I stopped
       taking notes of those because it appeared that too was somewhat regular
       where the witness would nod, and witness would then be questioned again,
       and witness would be consistent with the verbal statements. But I don’t
       find that this is unreliable statement because of the setting. I also find that
       it’s contemporaneous to the time and date of the incident. . . . The facts of
       this case appear to lend it [sic] itself to reliability of the statement given by
       the witness.”
       As previously stated, the video recording of both portions of A.Z.’s interview was
admitted into evidence and played for the jury.
B.     Analysis
       Evidence Code section 1360, subdivision (a) provides in pertinent part: “In a
criminal prosecution where the victim is a minor, a statement made by the victim when
under the age of 12 describing any act of child abuse . . . performed with or on the child
by another, . . . is not made inadmissible by the hearsay rule if all of the following apply:
[¶] (1) The statement is not otherwise admissible by statute or court rule. [¶] (2) The
court finds, in a hearing conducted outside the presence of the jury, that the time, content,
and circumstances of the statement provide sufficient indicia of reliability. [¶] (3) The
child . . . : [¶] (A) Testifies at the proceedings.”21

21     Because A.Z. testified at trial, defendant’s confrontation rights were not
implicated by application of the statute. (See Crawford v. Washington (2004) 541 U.S.
36, 59, fn. 9 (Crawford); People v. Morrison (2004) 34 Cal.4th 698, 720.)


                                              21.
       “We review a trial court’s admission of evidence under [Evidence Code] section
1360 for abuse of discretion. [Citation.]” (People v. Roberto V. (2001) 93 Cal.App.4th
1350, 1367; see People v. Waidla (2000) 22 Cal.4th 690, 724.) A trial court has “broad
discretion” in determining whether a party has established the foundational requirements
for application of a hearsay exception. (People v. Martinez (2000) 22 Cal.4th 106, 120;
see People v. Pirwani (2004) 119 Cal.App.4th 770, 787.)22
       The California Supreme Court has identified the following nonexhaustive list of
factors as being relevant to the reliability of hearsay statements made by a child witness
in a sexual abuse case: (1) spontaneity and consistent repetition; (2) the declarant’s
mental state; (3) use of terminology unexpected of a child of a similar age; (4) lack of
motive to fabricate; and (5) the child’s ability to understand the duty to tell the truth and
to distinguish between truth and falsity. (In re Cindy L. (1997) 17 Cal.4th 15, 29-30; see
Idaho v. Wright (1990) 497 U.S. 805, 821-822, abrogated in part by Crawford, supra,
541 U.S. at pp. 60-62.) Defendant does not claim these factors were insufficiently


22      It has been held that a trial court’s findings concerning indicia of reliability are
subject to independent review on appeal. (People v. Tatum (2003) 108 Cal.App.4th 288,
296; People v. Eccleston (2001) 89 Cal.App.4th 436, 445-446; but see People v. Brodit
(1998) 61 Cal.App.4th 1312, 1330 [applying abuse of discretion standard to trial court’s
finding hearsay statements were reliable for purposes of Evid. Code, § 1360].) The cases
so holding cite Lilly v. Virginia (1999) 527 U.S. 116, 136 as authority for that
proposition. In Lilly, however, the United States Supreme Court followed the standard
set forth in Ohio v. Roberts (1980) 448 U.S. 56, which conditioned the admission of
hearsay evidence on whether it fell “within a firmly rooted hearsay exception” or bore
“adequate ‘indicia of reliability.’ ” (Id. at p. 66; see Lilly, supra, 527 U.S. at pp. 124-125
(plur. opn. of Stevens, J.).) Roberts in turn was abrogated by Crawford, supra, 541 U.S.
at pages 60-62, thereby rendering Lilly “a dead letter” (U.S. v. Smalls (10th Cir. 2010)
605 F.3d 765, 773).
       In light of these developments in the law, it appears to us the “reliability”
requirement of Evidence Code section 1360, subdivision (a) is now a foundational one
subject to the usual abuse of discretion standard of review applicable to state law hearsay
exceptions in general. We need not make this determination, since our conclusion in the
present case would be the same under either standard.


                                             22.
established; rather, he says Kincaid’s leading and suggestive questions “created an
unreliable accounting of events.”
       We have reviewed a transcript of both portions of A.Z.’s interview. (See People v.
Tatum, supra, 108 Cal.App.4th at p. 300.) We agree with the Attorney General that, for
the most part, Kincaid posed leading questions in an attempt to clarify A.Z.’s previous
statements and responses. A.Z. often included extensive information in her answers,
necessitating clarification or follow-up questioning. She clearly felt comfortable
answering questions negatively and offering further explanations or correcting Kincaid.
“This sort of comprehension and independence can be viewed as enhancing her
reliability. [Citation.]” (People v. Eccleston, supra, 89 Cal.App.4th at p. 447.)
       Defendant argues the second part of A.Z.’s interview was particularly suggestive,
as it was “a not so subtle attempt to sync A.Z.’s story with S.Z.[’s] account of events.”
However, A.Z. was sufficiently independent to maintain, for example, that she did not see
defendant come into the room or hear when the door opened, even when Kincaid
informed her that S.Z. said she heard the door open. A.Z. also insisted she did not go to
Washington Park.23
       We recognize the following took place during the second part of the interview:

              “O [Kincaid]: Okay. Now, did he, when he was uh touching you,
       did he, was he, did he tell you anything, say anything to you? No? Did he
       may have and you don’t remember or you’re sure he didn’t?

              “A [A.Z.]: Well, I really don’t remember.

              “O: Okay. So you would, would you remember if he said anything
       to you about, the way you look or about touching you or any of that kind of
       stuff? Anything pop into your mind, anything jog your memory on that?
       No? Okay. . . . [¶] . . . [¶]



23    Kincaid clearly asked about an incident at the park because of information S.Z.
provided.


                                            23.
              “O: Kay, . . . . He didn’t, did he ever ask you, um, for permission to
       touch you anywhere or anything like that or to kiss you or anything like
       that? Mm, did he try to kiss you? No? What was he doing when he was
       touching you?

              “A: He (inaudible).

              “O: Not saying anything, not trying to kiss you or hug you? Well
       he squeezed you right? And he didn’t tell you anything when he was
       squeezing you? No? Okay. You think there’s a possibility that he may
       have told you some stuff and you were scared and don’t remember. Or you
       were for sure he didn’t tell you anything?

             “A: Well he told me some stuff but I don’t remember.” (Italics
       added.)
       Even if we were to conclude the foregoing portion of A.Z.’s interview lacked, due
to suggestive questioning by Kincaid, sufficient indicia of reliability for admission
pursuant to Evidence Code section 1360, we would hold reversal is not warranted: No
“reasonable probability exists that the jury would have reached a different result had this
evidence been excluded. [Citations.]” (People v. Whitson, supra, 17 Cal.4th at p. 251;
see People v. Watson (1956) 46 Cal.2d 818, 836.) A.Z., S.Z., and Kincaid all testified at
trial and were subject to cross-examination. “[T]he reliability of testimonial hearsay is
best established by ‘the crucible of cross-examination.’ [Citation.]” (People v. Lewis
and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19, quoting Crawford, supra, 541 U.S. at
p. 61.) Defendant was free to establish, if he could, the unreliability of A.Z.’s statement
and testimony. Since the jury did not convict him of committing a lewd or lascivious act
on A.Z., we presume he was partially successful.
       Defendant says admission of A.Z.’s interview statements violated his right to due
process. He offered no constitutional basis for his objection in the trial court. “Under
these circumstances, a constitutional claim is not cognizable on appeal unless (1) it ‘is of
a kind (e.g., failure to instruct sua sponte; erroneous instruction affecting defendant’s
substantial rights) that required no trial court action by the defendant to preserve it, or
(2) the new arguments do not invoke facts or legal standards different from those the trial

                                              24.
court itself was asked to apply, but merely assert that the trial court’s act or omission,
insofar as wrong for the reasons actually presented to that court, had the additional legal
consequence of violating the Constitution.’ [Citation.]” (People v. Zamudio (2008) 43
Cal.4th 327, 353.) Defendant’s due process claim does not fall into the first category.
Thus, it is “preserved only to the extent that the federal aspect is a gloss on the claim of
error actually raised. [Citation.]” (People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335, 413, fn. 34; see Evid. Code, § 353, subd. (a).)
       “The admission of evidence results in a due process violation only if it makes the
trial fundamentally unfair. [Citation.] ‘Only if there are no permissible inferences the
jury may draw from the evidence can its admission violate due process. Even then, the
evidence must “be of such quality as necessarily prevents a fair trial.” [Citations.]’ ”
(People v. Hunt (2011) 196 Cal.App.4th 811, 817; see People v. Falsetta (1999) 21
Cal.4th 903, 913.)
       To the extent any of A.Z.’s interview was erroneously admitted, it did not render
defendant’s trial fundamentally unfair. Accordingly, defendant has failed to establish a
due process violation.
       Defendant declares, however, that “the admission of a child’s statement tainted by
memory altering interviewing techniques violates due process of law.” (Original
capitalization & underscoring omitted.) Likening the situation to one involving
suggestive lineup procedures, he argues for use of the type of pretrial “taint” hearing
described in State v. Michaels (1994) 136 N.J. 299 [642 A.2d 1372, 1382-1383], in which
“[t]he basic issue to be addressed . . . is whether the pretrial events, the investigatory
interviews and interrogations, were so suggestive that they give rise to a substantial
likelihood of irreparably mistaken or false recollection of material facts bearing on
defendant’s guilt. [Citations.]” (Ibid.) Defendant goes on to assert that “[w]here the
defense shows that a child has been subjected to suggestive interview procedures, the
testimony of that child must be excluded unless the prosecution can establish those

                                              25.
procedures did not affect the child’s memory, just as testimony tainted by suggestive
identification procedures would be excluded. [Citation.]” (Italics added.)
       Defendant made no such claim in the trial court, and never moved for exclusion of
A.Z.’s actual testimony. To do so now would invoke facts and/or legal standards
different than those the trial court was asked to apply. (See People v. Zamudio, supra, 43
Cal.4th at p. 353.) “A party cannot argue the court erred in failing to conduct an analysis
it was not asked to conduct.” (People v. Partida (2005) 37 Cal.4th 428, 435.)
       Defendant asserts, in his reply brief, that he is not raising an additional legal
theory, but rather is pointing to the fact that the interview statement was read to A.Z.
prior to her testifying. Defendant misrepresents the record.24
       We recognize child testimony can be “unreliable, induced, and even
imagined . . . .” (Kennedy v. Louisiana (2008) 554 U.S. 407, 443.) Defendant was free
to attempt to show such was the case where A.Z. was concerned. The fact remains,
however, that he never sought exclusion of A.Z.’s trial testimony. Under the
circumstances of this case, “ ‘a claim that the trial court erred on the issue actually before
that court’ ” simply does not “ ‘lead[] to rejection of the newly applied constitutional
“gloss” as well.’ ” (People v. Chism (2014) 58 Cal.4th 1266, 1290, fn. 9.) Accordingly,
to the extent defendant contends more than simply that erroneous admission of A.Z.’s
interview statements under Evidence Code section 1360 violated due process, the claim

24     Stacy Cordero, an investigator for the district attorney’s office, testified without
contradiction that she and the prosecutor met with A.Z. a couple of weeks before trial in
an effort to prepare A.Z. for what to expect in the courtroom. Because it was “extremely
difficult” to talk to A.Z., Cordero “mov[ed] the process along” by reading A.Z. a “very
limited portion of the report which Officer Kincaid had authored.” (Italics added.)
Cordero expressly testified that she did not show A.Z. the video-recorded interview A.Z.
gave to Kincaid or the transcript of that interview, or even read from the transcript. On
cross-examination, she testified she only read two paragraphs of the report to A.Z., and
did so to “keep things moving forward.” She explained A.Z. was not refusing to talk or
saying she did not remember; rather, she was being shy and guarded in answering
questions concerning where defendant touched her.


                                             26.
has not been preserved for appeal. (See People v. Partida, supra, 37 Cal.4th at pp. 438-
439; People v. Marks (2003) 31 Cal.4th 197, 228.)
                                             III
           REQUIREMENT THAT DEFENDANT REGISTER AS A SEX OFFENDER
       Defendant says the trial court erred when it ordered him to register as a sex
offender, because it failed to (1) comply with the authorizing statute and (2) state
adequate reasons. We find no reason to strike the order.
A.     Background
       At sentencing, the trial court asked both counsel if they wanted time to prepare to
address the issue of sex offender registration, which the probation officer’s report had not
mentioned. The court noted section 290.006 gave it discretion to require sex offender
registration if it found the offense was committed as a result of sexual compulsion or for
purpose of sexual gratification, and that reasons had to be stated for findings in that
regard and for requiring registration. The court clarified it was not saying it was going to
make the necessary finding, but was “putting [the issue] on the table,” because it needed
to be addressed. The prosecutor stated he was ready to argue the matter, but defense
counsel accepted the court’s offer of time to prepare. Accordingly, the court took a brief
recess. Following the recess, defense counsel confirmed he was ready to proceed.
       Defense counsel asked the court not to order registration, as there was no physical
evidence defendant molested A.Z.; there were “major inconsistencies” between A.Z.’s
and S.Z.’s accounts; A.Z. said defendant was looking through her backpack when she
woke, indicating defendant had no sexual intent upon entry; and defendant had no history
of sexual offenses. The prosecutor responded by pointing to the jury’s finding defendant
entered the residence with the intent to commit a lewd act on a child.
       After partially imposing sentence, the trial court stated:

             “As to Penal Code 290, I have reviewed my own notes, certainly
       reviewed the report for the probation as it was submitted. The harm that


                                             27.
this has caused to [A.Z.] and [S.Z.] to have been exposed to this type of a
traumatic incident in their own home in their own bed at the late hours of
the night, to their mother, as the mother professes in her own letter. I have
reviewed the notes from the trial where the two sisters both testified more
or less to the same root facts. Some certain inconsistences were present,
but when not material and/or otherwise resolved by other evidence certainly
did not rise to the level that the court found to be so inconsistent that they
were diametrically opposed. The root facts remain the same, that at the late
hours of the night a man that they knew, that lived in the back of . . . mutual
properties with theirs and another residence nearby, entered their home
through an area of their home that was not allowed for people to come
through without their mother’s approval. In fact it what’s [sic] a door that
was blocked with a bedroom furniture. It was opened against their
knowledge, against their invitation, and Mr. Tovar was seen in the room on
the floor initially looking through the backpack. . . . That both girls were in
bed either asleep, acting asleep or falling asleep, so it was not at a time of
the night or the day when they were sitting up watching TV and he entered
to chat with them about their lives or their boyfriends or their family lives,
without the parent’s permission, without announcing his presence, taking
advantage of what would be a trust-type relationship where they would
know a person, recognize him. Particularly disturbing when a person is
allowed to remain on the property and takes advantage of this nature. Used
what was identified by at least one of the sisters sexual natured language
about doing certain things to [A.Z.], that it would make her feel good. That
gives no doubt in the court’s mind that this activity was for sexual
gratification. This is predatory behavior by Mr. Tovar. There’s no
question that this behavior was for sexual gratification. Penal Code
290.006 states that the court must state on the record if the court finds that
it is, in fact, sexual gratification reasons. The evidence speaks for itself that
that . . . was Mr. Tovar’s mission that evening. Whether he started off by
looking through the backpack or not, that appears to have been and was the
finding by the jurors to be his specific intent that night when he entered the
room. Why they were unable to reach a unanimous decision on Count 1 is
not for me to speculate, counsel. . . . [B]ut clearly the verdict form as read,
as polled, stated [section] 288 being the specific intent of the entrance.
Therefore, this court does believe that to protect to [sic] the vulnerable
members of this society that Mr. Tovar be ordered to register pursuant to
Penal Code 290, and I will therefore exercise my discretion in this case in
favor of ordering him to register pursuant to [section] 290 for the rest of his
life. I understand it’s not mandatory. I understand it’s discretionary. But
in the court’s discretion and the facts of this case does [sic] dictate that the
court should order [section] 290 registration.”



                                      28.
B.     Analysis
       Section 290, subdivision (b) mandates lifetime registration for anyone convicted
of an offense listed in subdivision (c) of the statute. Burglary with intent to commit a
lewd and lascivious act on a child under age 14 is not listed in subdivision (c) of section
290; hence, a person convicted of that offense is exempt from section 290’s mandatory
lifetime registration. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1197 (Hofsheier),
overruled on another ground in Johnson v. Department of Justice (2015) 60 Cal.4th 871,
888 (Johnson).)
       This does not mean such a person escapes registration, however. Section 290.006
provides: “Any person ordered by any court to register pursuant to [section 290 et seq.]
for any offense not included specifically in subdivision (c) of Section 290, shall so
register, if the court finds at the time of conviction or sentencing that the person
committed the offense as a result of sexual compulsion or for purposes of sexual
gratification. The court shall state on the record the reasons for its findings and the
reasons for requiring registration.”
       This statute (the terms of which previously were contained in subd. (a)(2)(E) of
§ 290) “leaves the trial judge with the option of refusing to order registration.”
(Hofsheier, supra, 37 Cal.4th at p. 1197.) “[T]o implement the requirements of section
[290.006], the trial court must engage in a two-step process: (1) it must find whether the
offense was committed as a result of sexual compulsion or for purposes of sexual
gratification, and state the reasons for these findings; and (2) it must state the reasons for
requiring lifetime registration as a sex offender. By requiring a separate statement of
reasons for requiring registration even if the trial court finds the offense was committed
as a result of sexual compulsion or for purposes of sexual gratification, the statute gives
the trial court discretion to weigh the reasons for and against registration in each
particular case.” (Ibid.)



                                              29.
       “In order to make a discretionary determination as to whether or not to require
registration [under section 290.006], the trial court logically should be able to consider all
relevant information available to it at the time it makes its decision.” (People v. Garcia
(2008) 161 Cal.App.4th 475, 483, disapproved on another ground in Johnson, supra, 60
Cal.4th at p. 888 & disapproved on another ground in People v. Picklesimer (2010) 48
Cal.4th 330, 338-339, fn. 4.) “One of the purposes of the sex offender registration
requirements ‘ “ ‘ “is to assure that persons convicted of the crimes enumerated therein
shall be readily available for police surveillance at all times because the Legislature
deemed them likely to commit similar offenses in the future. [Citation.]” ’ ” [Citations.]’
[Citation.] Where registration is discretionary, then, one consideration before the court
must be the likelihood that the defendant will reoffend.” (People v. Garcia, supra, 161
Cal.App.4th at pp. 484-485; accord, People v. Thompson (2009) 177 Cal.App.4th 1424,
1431, disapproved on another ground in Johnson, supra, 60 Cal.4th at p. 888.)
       We conclude the trial court here undertook the requisite two-step process and
stated its reasons for its findings. The court’s statement defendant should be ordered to
register “to protect . . . the vulnerable members of . . . society” shows the court implicitly
considered the likelihood, and found it likely, defendant would reoffend. Given the
purposes of sex offender registration, this constituted a reason for requiring lifetime
registration. In light of the facts of the case, we cannot say the trial court acted
irrationally. (See People v. Carmony (2004) 33 Cal.4th 367, 377.) If defendant felt a
necessary finding or statement of reasons was omitted or that the reasons given were
inadequate, he should have objected or requested more from the court. Because he failed
to do so, he cannot be heard to complain on appeal. (People v. Bautista (1998) 63
Cal.App.4th 865, 868; see People v. Scott (1994) 9 Cal.4th 331, 353 [failure to object
forfeits claims involving trial court’s failure to properly make or articulate discretionary
sentencing choices]; see also People v. Scott (2015) 61 Cal.4th 363, 406 [failure to object
forfeits claims trial court failed to state reasons or adequate reasons applicable to two-

                                              30.
step process under § 667.6, subd. (c), as required by People v. Belmontes (1983) 34
Cal.3d 335, 347-348].)
       Defendant says any further objection or request for articulation would have been
futile; hence, any failure to object should be excused. (See People v. Hill (1998) 17
Cal.4th 800, 820.) The record does not support his assertion.25 Nor has defendant
established the trial court’s reasoning was flawed. (See People v. Carmony, supra, 33
Cal.4th at p. 376.)
       In sum, the trial court considered the applicable legal policies and principles, and
it is immaterial that reasonable people might disagree with its registration order. (See
People v. Carmony, supra, 33 Cal.4th at pp. 376-377.) There was no abuse of discretion.
                                      DISPOSITION
       The judgment is affirmed.

                                                                 _____________________
                                                                            DETJEN, J.
WE CONCUR:


 _____________________
 LEVY, Acting P.J.


 _____________________
 FRANSON, J.




25      Indeed, after the trial court finished advising defendant of his appeal rights, both
counsel were permitted to raise issues with respect to the sentence already imposed. The
trial court slightly altered portions of the sentence in response to each party’s request.


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