Filed 12/21/15 P. v. Pacheco CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143081
v.
JOSE ALBERTO PACHECO,                                                (Sonoma County
                                                                     Super. Ct. No. SCR629099)
         Defendant and Appellant.


         Jose Alberto Pacheco appeals from a judgment entered after he pleaded no contest
to an information charging him with one count of Penal Code,1 section 288.5, subdivision
(a) (continuous sexual abuse of a child under the age of 14) and two counts of section
288, subdivision (c)(1) (lewd and lascivious act with a child 14 or 15 years of age). His
counsel on appeal has filed an opening brief asking this court to conduct an independent
review of the record as is required by People v. Wende (1979) 25 Cal.3d 436. Counsel
also informed Pacheco he had the right to file a supplemental brief on his own behalf.
Although Pacheco did not file a brief, he did write a letter to this court identifying two
issues on appeal: 1) improper denial of his Miranda2 motion and 2) improper reliance on



         1
             All unspecified statutory references are to the Penal Code.
         2
             Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).




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his statements to the probation department as a basis for his sentence. Having conducted
a full-record review, we find no issues that merit briefing. We therefore affirm.
                                     I. BACKGROUND
A. Police Interrogation and Miranda warnings
       Pacheco was detained by an unidentified officer from the Sonoma County
Sheriff’s Department January 30, 2013 and taken to an interrogation room at the Sheriff’s
Office for an in-custody interrogation that afternoon. Once there, the officer removed
Pacheco’s handcuffs and directed him to stay in the room and stay seated; before leaving,
he told Pacheco that the water in the room is for him to drink, and to “[j]ust relax and
they’ll be in to talk to you and explain everything to you . . . .” Detective Mechelle
Buchignani then entered to check on Pacheco. As Buchignani asked background
questions of Pacheco, he stated “I’m like really nervous. I don’t know what’s going on.”
Pacheco also asked Detective Buchignani, “[A]m I, am I arrested?,” to which she
responded, “I’m not sure what’s going on right now...my partner should be here pretty
soon, so . . . [¶] . . . Yeah you’re not free to leave at this moment.”
       Several hours later, around 5:19 p.m., Detective Travis Koeppel entered the room
to collect DNA samples from Pacheco. Pacheco asked Koeppel “what is this about?” and
Koeppel responded that he did not know the circumstances of Pacheco’s case and was
just there to collect DNA samples. Pacheco told Koeppel at least three times that he did
not know what was going on and attempted to get more information about why he was in
custody. Pacheco told Koeppel how “they just put in me handcuffs. I’m like a suspect in
something, huh? That’s what it is?” Koeppel responded, “Uh, I don’t know. Just . . .
your best policy is they’ll ask you questions, just answer honestly . . . ” and also told
Pacheco that “[i]f you got, you got nothing to hide then . . .[¶] . . . Just answer the
detective honestly and . . . [¶]. . . you should be alright.”
       Detective Buchignani then returned with Detective Berges. Berges asked Pacheco
whether someone arrested him at his house and Pacheco confirmed that he was arrested.
The record is silent as to whether Mr. Pacheco was informed of the charges at the time of



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his arrest; Detective Berges did not inform him of the nature of the charges prior to
reading him his Miranda rights. The exchange then went as follows:
       “D [etective Berges]: Alright, well they probably didn’t read you your Miranda
Rights then. But I’m gonna read ‘em to you now . . .
       JP [Jose Pacheco]: Yes, sir.
       D: . . . so that you understand, okay? You have the right to remain silent,
anything you say . . .
       JP: Okay.
       D: . . . can and will be used against you in the court of law.
       JP: Mm-hm.
       D: Do you understand that? Okay, you--
       JP: Oh, so am I arrested?
       D: Yes.
       JP: What is the reason?
       D: Well let me read you these and then we can . . .
       JP: Okay.
       D: . . . talk about it. So I’m gonna start over. You have the right to remain silent.
Anything you say can and will be used against you in a court of law.”
       JP: Okay.
       D: You have the right to talk to a lawyer and have him present with you while
you’re being questioned.
       JP: Okay.
       D: If you cannot afford to hire a lawyer, one will be appointed free of charge to
represent you before and during any questioning.
       JP: Okay.
       D: Do you understand?
       JP: Mm-hm.
       D: Wanna talk to me about why you’re here?
       JP: I don’t know sir.


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       D: Do you wanna talk to me about why you’re here?
       JP: What do you mean?
       D: Would you like to talk to me about why you are under arrest?
       JP: No, sir, I don’t know.
       D: Do you understand what I am asking?
       JP: Not really.
       D: Okay, do you want to talk to me?
       JP: Yes, sir.
       D: About this?
       JP: Yes, sir.”
       Detective Berges then told Pacheco that he needed “a hundred percent honest[y]”
and “[n]o lying” so “we can get you outta here” and “get you maybe help if you need
help.” Pacheco initially denied touching his stepdaughter, Jane Doe, inappropriately.
Detective Berges repeatedly told Pacheco he needed to be honest, and told Pacheco that
they “want to make sure that [Jane Doe] isn’t gonna grow up and have all these problems
in her head” and that they “need to be able to explain to [Jane Doe] that you didn’t mean
to hurt her.” The detective continued the conversation in that vein, telling Pacheco that
they needed to make sure that Jane Doe was okay, and that “[t]his is not about you . . .
this is about her.” Focusing on getting Jane Doe the helps she needed, Detective Berges
explained that “[p]art of that is you owning up to this and saying, I’m really sorry, I did
not mean to hurt you. I love you. But I’m not gonna put words in your mouth.” At that
point Pacheco asked the detective, “So, where am I right now, sir? That’s what I want to
know.” Detective Berges did not respond to that question, but instead, after more denials
from Pacheco, told him, “I’m not gonna even bother helping you if you can’t be honest
with me.” Detective Berges also told Pacheco that his semen was found in Jane Doe’s
bedroom on her mattress, insinuating that such evidence proved Pacheco was lying.3


       3
        At the hearing on the Miranda motion, Detective Berges admitted that at the time
he told Mr. Pacheco that Pacheco’s seminal fluid had been found, that was untrue—there

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Ultimately, Pacheco said “So if I told you I touch her, what then? Cause I don’t know
what you want me to told you.” Detective Berges said “I want you to tell me the truth,”
to which Pacheco responded “Okay. I touch her. Okay.” Pacheco said the conduct
started around four or five months earlier, and that he touched her six or seven times,
sometimes masturbating at the same time. The detective offered to let Pacheco write his
stepdaughter a note to “make this better” with her, but Pacheco told the detective he did
not know how to write in English. While Pacheco admitted to touching and rubbing his
stepdaughter’s vagina, he consistently denied that he ever touched her when the family
lived in Santa Rosa, and said the touching only happened after they moved into their
house in Windsor about a year earlier, stating “I can’t admit to I did, if I didn’t.”
B. Preliminary hearing testimony of Jane Doe
       Pacheco declined the district attorney’s offer to settle the case prior to the
preliminary hearing. Jane Doe testified as the only witness at the preliminary hearing,
which was held on May 10, 2013. Jane, who had just turned 16 a few days earlier,
testified that Pacheco was her stepfather and she has known him since she was two years
old. She testified about a pattern of sexual abuse by Pacheco that started when she was
about nine years old when they were living in a house in Santa Rosa. She recalled “times
when I would be sleeping and around nighttime I would wake up to him [Pacheco] next
to me in the bed.” During these times, Jane testified that Pacheco would start with his
hand around her knee or thigh and then move it up her leg, ultimately moving his hand
under her shorts to touch and rub her vagina over her underwear. Jane would fidget or
move until Pacheco retreated. She said she did not tell anyone because she was scared.
She estimated that this conduct occurred every few weeks from the ages of nine to
twelve. At age 12, the family started living in a different house in Santa Rosa. At this
age, Pacheco began touching her vagina under her underwear instead of over top of it.
She again estimated that the touching happened every few weeks. She did not recall if
any touching occurred when she was 13. Jane testified that it again progressed after she

was a presumptive positive test for seminal fluid, but the fluid had not yet been identified
as belonging to Mr. Pacheco.

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turned 14, at which point sometimes Pacheco would touch inside the lips of her vagina.
At this age it occurred every few months. Jane finally told one of her friends when she
was about 15 years old. She eventually told her mother in January of 2013, which lead to
Pacheco’s arrest and prosecution. At that time the family was living in Windsor.
       The court held Pacheco to answer based on Jane Doe’s testimony. An information
filed on May 24, 2013, charged the same three counts on which Pacheco was held to
answer, but the time frames alleged were slightly modified. It charged Pacheco with one
count of section 288.5, subdivision (a) for the time period of May 7, 2006 through May 6,
2011 (Count I) and two counts of section 288, subdivision (c)(1), for the time periods of
May 7, 2011 through May 6, 2012 and May 6, 2012 through January 30, 2013,
respectively (Counts II and III).
C. Defense motion to suppress
       Pacheco’s trial began with motions in limine on June 23, 2014. At that time, the
parties conducted a hearing on a defense motion to suppress Pacheco’s statements to law
enforcement based on violations of Miranda and Pacheco’s due process rights.
Pacheco’s counsel argued that his waiver of right under Miranda was not voluntary,
knowing, and intelligent. Defense counsel also argued that law enforcement coercion
made Pacheco’s confession “involuntary” under the Fourteenth Amendment Due Process
Clause. The bulk of the hearing consisted of the court viewing the tape-recorded video of
Pacheco’s interview. Pacheco’s counsel also planned to call Dr. Ricardo Winkel to
present expert testimony regarding the voluntariness of Pacheco’s confession.
       The court indicated that it would start by deciding whether Pacheco “voluntarily,
knowingly and intelligently” waived his Miranda rights. After the court watched the
video and heard testimony from the Sheriff’s employees who interacted with Pacheco
around and during the time of his interrogation, it denied the motion to suppress
Pacheco’s statement, noting that “there is nothing about this [video] that leads me to
believe [Pacheco] did not knowingly, intelligently voluntarily waive or that he did not
understand what was being said to him.” The court specifically said that there was
nothing, considering the entirety of the video, “that indicates . . . that this is a


                                                6
comprehension issue, that [Pacheco] doesn’t understand English, that he didn’t know
what was going on.” The court found that Pacheco’s hesitation and equivocal statements
such as “no, I’m not sure” was him “struggling about whether or not he wants to talk, not
whether or not he understood whether he could or could not.”
       The court reserved its ruling on the voluntariness issue to review several cases
cited by Pacheco’s counsel and determine whether it needed to hear from Dr. Winkel on
the subject. However, it indicated that it saw the issue of voluntariness of the statements
as a “legal argument about voluntariness as opposed to an expert arguing about
voluntariness.” The next day, the court denied the defense request for a hearing pursuant
to Evidence Code section 402 to determine the voluntariness of Pacheco’s statements. In
doing so, the court stated: “[T]he Court is going to find that [the] statement was
voluntarily made, that there was not undue coercion by law enforcement. . . . This is
about the entirety of the interaction that occurred between [Pacheco and the interrogating
officers] and how that occurred. And I simply do not find that he was coerced to the
extent that his statement was not free will or not voluntary.”
D. Plea and Sentence
       On June 25, 2014, the parties reconvened for a 402 hearing as to potential trial
testimony of Dr. Winkel. Pacheco’s counsel indicated that she had decided not to call Dr.
Winkel at trial. Counsel also indicated that Pacheco declined to accept the district
attorney’s most recent offer of pleading to counts one and two of the information for a
term of 12 years, 8 months and a dismissal of count three. After Pacheco himself
confirmed that he did not want to accept the offer of the prosecution, his attorney stated
that “[i]f the Court feels [its] input on settlement would be appropriate, we have no
objection to that.” The court and the parties then had an off-the-record discussion in
chambers. After that discussion, Mr. Pacheco plead to the information as charged,
pleading open to the court rather than accepting an offer from the prosecution.
       Pacheco executed a written advisement of rights, waiver and plea form that was
reviewed with a Spanish-language interpreter. On the form, Pacheco placed his initials in
a box next to the section indicating that he understood that he was pleading no contest to


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all three charges, and that he understood the charges carried a maximum total punishment
of 17 years, 4 months. Pacheco also initialed the box next to the section that said “Open
Plea -- I understand that there is no agreement or indication as to the sentence I will
receive on this matter. I could be sentenced up to the maximum penalty as stated above.”
Additionally, the sections entitled “Indicated sentence” and “1192.5 PC Negotiated
Disposition” were crossed out and the boxes next to those sections did not contain
Pacheco’s initials. The plea form also had a section to indicate where a term of custody
was stipulated. Pacheco’s initials appeared in the box next to this section, but instead of a
stipulated term of years, the words “open plea to court” were handwritten into that space.
Pacheco, his Spanish-language interpreter, and his defense counsel all signed the plea
form indicating the validity of its contents.
       During the plea colloquy, the court reminded Mr. Pacheco that he was “making an
open plea to the Court, which means there have not been any promises, you haven’t
negotiated an agreement with the District Attorney’s office, and so no promises have
been made, and you understand that?” Pacheco acknowledged that he understood that no
specific promise as to sentence had been made. He entered pleas of no contest to all three
counts of the information. When the court asked if there was a factual basis for the plea,
Pacheco’s attorney responded, “Your Honor, pursuant to People vs. West and Alford,
please.”4 The court found that the video of Mr. Pacheco’s police interview, along with
the evidence from the preliminary hearing, formed the factual basis of Pacheco’s plea to
the court.
       Pacheco was sentenced on August 14, 2014. The probation department
recommended that the maximum sentence of 17 years and four months be imposed. At
sentencing, the district attorney asked for the court to impose the midterm of 12 years on
the section 288.5 charge (Count I). Pacheco’s defense attorney argued for the court to


       4
          Pacheco’s attorney was referring to People v. West (1970) 3 Cal.3d 595 and
North Carolina v. Alford (1970) 400 U.S. 25. This plea, commonly known as an Alford
plea, is one in which a defendant pleads guilty while maintaining his or her innocence.
(See Cal. Crim. Law: Procedure and Practice (Cont. Ed. Bar 2015) § 26.45, p. 774.)

                                                8
impose the low term of six years on the section 288.5 charge. The defense attorney
reminded the court that Pacheco “entered the plea pursuant to . . . Alford vs. North
Carolina and People vs. West” and that he did so “purely to save the discomfort, the
stress, the embarrassment, the trauma of putting this young lady and her family through
trial.”
          Prior to announcing the sentence, the court commented that it was “most disturbed
by Mr. Pacheco’s statement to Probation denying that [anything] ever happened.” The
court also indicated that Mr. Pacheco’s denial was “somewhat different than my
understanding of his taking somewhat of responsibility for actions that happened in
Windsor versus Santa Rosa when he first talked about entering this plea” and that
Pacheco’s decision to deny any wrongdoing “negates any credibility he has about the
level to which this occurred.”
          The court listed several factors in aggravation, including that the victim was young
and vulnerable, Pacheco was in a position of authority, and Pacheco showed “zero
remorse” over the commission of the crimes. Specifically, Pacheco’s failure to
acknowledge his role in the crimes, the court opined, was “inconsistent with the . . .
videotaped interview that this court personally viewed.” The court also acknowledged as
a mitigating factor that Mr. Pacheco entered a plea before his family (including the
victim) had to testify at trial in front of a jury.
          The court found that the “factors in aggravation and the factors in mitigation are
balanced” and imposed the midterm of 12 years on count one, the section 288.5 charge,
deemed to be the principal term. As to counts two and three, the court imposed eight
months for each as required by law (see Penal Code § 1170.1, subd. (a)), to be served
consecutive to the base term of 12 years, for an aggregate term of 13 years and four
months. The court explained: “The Court does believe that that’s an appropriate sentence
based on the circumstances and factors in this case, having viewed the videotaped
confession and mostly because I’m extremely disappointed, disgusted quite frankly that
there was not only any responsibility by Mr. Pacheco but that there also seemed to be



                                                 9
blame toward the victim and the family. That is extremely disconcerting in light of the
facts of this particular case.”
E. Certificate of Probable Cause and Procedural History on Appeal
       Pacheco filed a timely notice of appeal. The trial court granted Pacheco’s request
for a certificate of probable cause as to the denial of the motion to suppress and exclude
Pacheco’s statements. (See § 1237.5 [certificate of probable cause is prerequisite for
appeal from judgment of conviction upon guilty or no contest plea].) On March 5, 2015,
Pacheco’s appointed appellate counsel filed an opening brief addressing the merits of the
Miranda issue. On March 10, 2015, counsel moved to strike the opening brief and
sought leave to file a brief pursuant to People v. Wende, supra, 25 Cal.3d 436; we granted
the motion and the Wende brief was filed. Counsel notified Pacheco of his intention to
file a Wende brief and advised him of his right to file a supplemental brief on his own
behalf within 30 days. Pacheco filed a letter with this court identifying two issues on
appeal: 1) improper denial of his Miranda motion and 2) improper use of his statement to
probation in sentencing.
                                   II. DISPOSITION
       Having conducted an independent review of the record on appeal under People v.
Wende, supra, 25 Cal.3d 436, and considered whether there are any arguable issues that
merit briefing, we find none.
       In the course of our review, we have taken into account the specific points
Pacheco noted in writing to the court following his counsel’s Wende notification. In
accordance with People v. Kelly (2006) 40 Cal.4th 106, 110, we address those issues
briefly, as follows:
       First, after reviewing the videotapes of Pacheco’s interrogation, we see no
Miranda violation. The Miranda warnings were complete and clearly given. While it is
clear that Pacheco spoke with an accent, there is no indication that his comprehension
was impaired due to a language barrier. To the contrary, the videotaped recording of his
interrogation shows him conversing fairly easily with the Sheriff’s deputies in English.
He never spoke in Spanish and he never gave any indication he could not understand the


                                            10
background questions being asked of him. We find substantial evidence to support the
trial court’s conclusion that Pacheco’s equivocal response to Detective Berges was
indicative of him “struggling about whether or not he wants to talk, not whether or not he
understood whether he could or could not.” We also find substantial evidence to support
the trial court’s conclusion that Pacheco was not coerced into making confessions. We
cannot conclude that Detective Berges made any promises or offers of leniency. Rather,
he appears to have done no more than point out the advantages of telling the truth.
       Second, we see no infirmity in the sentence imposed. The court had discretion
under Penal Code section 1170, subdivision (b) to choose the “appropriate term” that it
determined “best serve[d] the interests of justice.” In making that choice, California
Rules of Court, rule 4.420(b) specifically authorized the court to consider anything in the
case record and in the probation officer’s report. In this case, the court even chose to
deviate downward from the probation department’s upper term recommendation. We
find no abuse of discretion.
       The judgment is affirmed.




                                                  _________________________
                                                  Streeter, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Rivera, J.




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