Filed 10/17/13 P. v. Mena CA2/6
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication or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 8.111.5.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SECOND APPELLATE DISTRICT

                                                     DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B243872
                                                                           (Super. Ct. No. BA377299)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

EDGARDO OTTONIEL MENA,

     Defendant and Appellant.



                   Edgardro Ottoniel Mena appeals his conviction by jury of four counts of lewd
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acts upon a child under the age of 14 (counts 1-3 & 9; Pen. Code, § 288, subd. (a)) , three
counts of aggravated sexual assault of a child by means of rape (counts 4-6; § 269, subd.
(a)(1)), and two counts of aggravated sexual assault of a child by means of forcible oral
copulation (counts 7- 8; § 269, subd. (a)(4)) with special findings that appellant committed
the offenses against more than one victim (§ 667.61, subd. (c)). The trial court denied
probation and sentenced appellant to 105 years to life state prison. We affirm.
                   Viewed in a light most favorable to the judgment (People v. Johnson (1980)
26 Cal.3d 557, 576), the evidence shows the following:




1
    All statutory references are to the Penal Code unless otherwise stated.
                                    Counts 1 through 8 - Y. D.
              During the 2009-2010 school year, 11-year-old Y. D. lived with her parents,
her step grandparents, and appellant, her step-uncle. Appellant touched Y.'s vagina on the
outside of her clothes and, on other occasions, touched her under her clothing. Appellant
warned Y. that if she told anyone, her step-grandmother would die and there would be
"problems at the house." Y. knew that the grandmother was in poor health and that
"problems at the house" meant that his stepfather would get "crazy" and there would be
physical fights. Y. was scared and told no one.
              Appellant put his penis in her vagina on at least three occasions. The first
time, appellant pushed Y. onto his bed, pulled down her pants, restrained her hands, and
pushed his penis into her vagina.
              The next time, appellant entered Y.’s bedroom when Y. and her brothers were
asleep. Appellant kept the lights off and pushed his penis into her vagina. Y. was too scared
to scream or call out for help. It happened on a Saturday night, while the adult family
members were playing cards and drinking in the garage.
              On three other occasions, appellant forced Y. to orally copulate him.
Appellant pushed her down on her knees, forced his penis into her mouth, and pushed on her
head until he ejaculated.
              The third rape occurred when Y.'s parents left the house to pay the rent.
Appellant locked Y. in his bedroom, put her face down on the bed, pulled her sweat pants
down, and put his penis in her vagina. When a family member came looking for Y.,
appellant went out the back door. The stepfather screamed at Y. and demanded to know
why she was in appellant's room. Y. was too scared to answer.
              The next week, Y. told her teacher that appellant was putting his private parts
into her private parts. Y. also spoke to the police.
              Los Angeles City Police Detective Brenda Salazar arrested appellant several
months later. After advisement and waiver of his constitutional rights; appellant said that Y.
would come into his bedroom, lie on the bed, and touch his penis. Appellant stated that Y.
was to blame and that she had sexual intercourse with him on two occasions.


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On three other occasions, Y. touched his penis and orally copulated him. Appellant
admitted that it was against the law and said that he learned his lesson after the family broke
up because of what he and Y. had done.
                                      Count 9 - Ana L..
              Ana L. testified that appellant molested her in 2003 when she was four years
old. Ana's father worked with appellant and gave him a ride home after a party. Appellant
sat in the back seat where Ana and Ana's baby sister were riding. Ana awoke to find her
pants unbuttoned. Appellant laughed, touched her vagina, and pretended he was tickling
her.
              Ana's father, Eduardo M., saw appellant moving his hand, stopped the car, and
saw that Ana's pants were unbuttoned. Eduardo asked what happened. Ana replied, "This
guy touched me here," pointing to her vagina. Eduardo pulled appellant out of the car and
hit him as he fled. Ana was taken to the hospital and underwent a SART examination.
                                           Miranda
              Appellant argues that his statement is inadmissible because he was not
immediately advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16
L.Ed.2d 694]) when first arrested. Appellant forfeited the error by not specifically raising it
at trial. (People v. Michaels (2002) 28 Cal.4th 486, 512; People v. Ray (1996) 13 Cal.4th
313, 339.)
              On the merits, appellant's statement was properly admitted. A custodial
interrogation occurs for Miranda purposes where the suspect is in custody and asked
questions reasonably likely to elicit an incriminating response. (Rhode Island v. Innis
(1980) 446 U.S. 291, 300-301 [64 L.Ed.2d 297, 307-308].) Appellant was not interviewed
until he arrived at the police station. Before advising him of his Miranda rights, Detective
Salazar asked appellant where he lived and where he worked. Miranda warnings are not
required for routine background or booking questions (People v. Andreasen (2013) 214
Cal.App.4th 70, 86-87.)




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              Appellant was then advised of his Miranda rights and asked "do you know
why the police . . . want to talk to you?" Appellant said that he used to live with his
brother's family and that Y. would come to his bedroom for help with her school work.
              Detective Salazar said that Y. was in love with him and "she told me what
happened between you two . . . when the mom was not there." Appellant admitted that Y.
would sit on his bed and touch his private parts when he was drunk. Detective Salazar said,
"I need to know . . . if it was a mistake, [and that] . . . there are programs we can put you in,
to get you some help."
              Appellant argues that it was a coercive interrogation because Detective
Salazar "softened" him up and took a sympathetic approach to elicit incriminating
statements. The use of deceptive comments and psychological ploys do not undermine the
voluntariness of a defendant's statements. (People v. Williams (2010) 49 Cal.4th 405,
443.) " 'Once a suspect has been properly advised of his rights, he may be questioned freely
so long as the questioner does not threaten harm or falsely promise benefits. Questioning
may include exchanges of information, summaries of evidence, outline of theories of events,
confrontations with contradictory facts, even debate between police and suspect. . . .'
[Citation.]" (People v. Halloway (2004) 33 Cal.4th 96, 115.)
              We have reviewed the Miranda interview which was recorded and
transcribed. No promises were made and there is no evidence that appellant was led to
believe that he might reasonably expect more lenient treatment if he confessed. (People v.
Hill (1967) 66 Cal.2d 536, 549.) Appellant makes no showing that he was tricked or
coerced, or that his due process rights were violated. (People v. Linton (2013) 56 Cal. 4th
1146, 1172; People v. Williams, supra, 49 Cal.4th at pp. 436-437.) Nor were Detective
Salazar's efforts to establish a rapport with appellant a coercive police tactic violative of the
Fifth Amendment. (People v. Bradford (1997) 14 Cal.4th 1005, 1043.)
              The alleged error, if any, in admitting appellant's statement was harmless
beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d
705, 710-711]; Arizona v. Fulminante (1991) 499 U.S. 279, 306-310 [113 L.Ed.2d 302, 328-
331]; People v. Johnson (1993) 6 Cal.4th 1, 32-33.) Y.'s testimony was corroborated by her


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statements to her godmother, school authorities, and the police. Appellant's brother
suspected that something was going on and confronted Y., as did the step-grandmother.
              The jury was instructed that appellant's statement should be considered with
caution (CALCRIM 358) and that appellant may not be convicted of any crime based on his
out-of-court statements alone (CALCRIM 359). Appellant defended on the theory that Y.
was to blame and initiated the sex. The grandmother testified that she frequently saw Y. try
to get into appellant's room and told her five or six times that it was not right. On cross-
examination, the grandmother opined that if appellant and Y. were having sex, they were
both at fault. It was strong evidence of guilt.
                                       Force or Duress
              Appellant argues that the evidence does not support the finding that force or
duress was used in counts 4 through 8 for aggravated sexual assault by means of rape and
forcible oral copulation. The jury was instructed that aggravated sexual assault of a child
under the age of 14 requires that the prosecution prove that appellant committed "rape by
force, fear or threats on another person." (CALCRIM 1123.) On counts 7 and 8 for forcible
oral copulation, the jury was instructed that the prosecution must prove that appellant
"accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful
bodily injury to someone. [¶] . . . [¶] Duress means a direct or implied threat of force,
violence, danger, hardship, or retribution that causes a reasonable person to do or submit to
something that he or she would not otherwise do or submit to. When deciding whether the
act was accomplished by duress, consider all the circumstances, including the age of the
other person and her relationship to the defendant." (CALCRIM 1015; see People v. Leal
(2004) 33 Cal.4th 999, 1004.)
               Appellant argues that he did not use force in excess of that necessary to
accomplish the sex acts. (See e.g., People v. Senior (1992) 3 Cal.App. 4th 765, 774.) But
physical force and duress (i.e. psychological coercion) are not the same. "The fact that the
victim testifies the defendant did not use force or threats does not require a finding of no
duress; the victim's testimony must be considered in light of her age and relationship to the
defendant." (People v. Cochran ( 2002) 103 Cal.App.4th 8, 14.)


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              Citing People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), appellant
argues that psychological coercion without more does not establish duress. In Espinoza
defendant molested his 12-year-old daughter but "[n]o evidence was adduced that [the]
defendant's lewd act and attempt at intercourse were accompanied by any 'direct or implied
threat' of any kind. While it was clear that [the victim] was afraid of the defendant, no
evidence was introduced to show that this fear was based on anything [the] defendant had
done other than to continue to molest her." (Id., at p. 1321.)
              Our courts have distinguished Espinoza where there is a large discrepancy in
size and age between the defendant and the victim that affects the victim's sense of physical
vulnerability. (People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239; People v.
Cochran, supra, 103 Cal.App.4th at pp. 14- 15; People v. Pitmon (1985) 170 Cal.App.3d
38, 51; People v. Veale (2008) 160 Cal.App.4th 40, 48.) Appellant was seven inches taller,
80 pounds heavier, and 20 years older than Y. Duress was established by the frequent
family contact, a long and trusting relationship, appellant's position of authority, the use of
an isolated place to commit the molestations (locked bedroom), and appellant's warning that
there would be dire consequences if Y. told anyone. (People v. Superior Court (Kneip),
supra, 219 Cal.App. 3d at pp. 238-239; People v. Cochran, supra, 103 Cal.App.4th at p.
15.) .) "A simple warning to a child not to report a molestation reasonably implied the
child should not otherwise protest or resist the sexual imposition." (People v. Senior, supra,
3 Cal.App.4th at p. 775.) The evidence clearly supports the finding that appellant
committed the charged offenses by duress. " 'Th[e] record paints a picture of a small,
vulnerable and isolated child who engaged in sex acts only in response to [appellant's
frequent contact with the family] and physical authority. Her compliance was derived from
intimidation and the psychological control he exercised over her and was not the result of
freely given consent.' " (People v. Veale, supra, 160 Cal.App. 4th at p. 48, fn. omitted.) A
rational trier of fact can find duress where there is an "inherent imbalance of power in an
encounter between a child and an adult bent on sexual conduct." (People v. Soto (2011) 51
Cal.4th 229, 245-246.)




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              The evidence further shows that appellant used force in both the penetration
and the physical movement and positioning of the victim. (People v. Young (1987) 190
Cal.App.3d 248, 258.) Appellant locked his bedroom door, pushed Y. on the bed, and
restrained her hands to accomplish the rape on two occasions. The rape in Y.'s bedroom
occurred while Y.'s brothers were asleep in the same bed. Y. was too scared to scream or
call out for help. On other occasions, appellant grabbed Y.'s head, pushed her down to her
knees, and moved her head with his hand until he ejaculated in her mouth.

                                            Count 9
              Appellant claims that the evidence does not support the conviction for lewd
conduct on Ana L. As in any sufficiency of the evidence appeal, we review the record in the
light most favorable to the judgment and presume the existence of every fact the jury could
reasonably deduce from the evidence in support of the judgment. (People v. Ochoa (1993)
6 Cal.4th 1199, 1206.)
              Ana testified that appellant unbuttoned her pants and touched her vagina. The
testimony of a single witness is sufficient. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Ana's testimony was corroborated by her father who saw appellant moving his hand. The
father stopped the car, opened the hatchback and saw that Ana's pants were unbuttoned.
Ana said "this guy touched me here," pointing to her vagina. Appellant got out of the
vehicle and fled. In a Miranda interview seven years later, appellant said he was "playing"
with Ana and tickling her stomach.
                                Preliminary Hearing Evidence
              Appellant claims that the evidence at the preliminary hearing was insufficient
to bind him over for trial on count 9 (lewd conduct), on one of the child rape counts (count
6), and on the element of force or duress with respect to counts 4 through 8. Insufficiency
of the evidence at the preliminary hearing is not a jurisdictional defect cognizable on appeal.
(People v. Alcala (1984) 36 Cal.3d 604, 628.) Appellant makes no showing that the
purported evidentiary irregularities at the preliminary hearing resulted in an unfair trial.
(People v. Letner (2010) 50 Cal.4th 99, 140.) "Where the evidence produced at trial amply


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supports the jury's finding, any question whether the evidence produced at the preliminary
hearing supported the finding of probable cause is moot." (People v. Crittenden (1994) 9
Cal.4th 83, 137.)
              Appellant's remaining arguments have been read and considered, and merit no
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further discussion.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.


                                                          YEGAN, J.

We concur:


              GILBERT, P.J.


              PERREN, J.




2
 Appellant, in his reply brief, argues for the first time that he did not expressly waive his
Miranda rights and the trial court erred in finding an implied waiver. The reply brief further
states that the denial of appellant’s section 995 motion to dismiss count 9 prejudiced
appellant because the sexual assault of Ana was remote in time and should have been
excluded as propensity evidence. (Evid. Code, §§ 352; 1102, subd. (a).) We ordinarily
decline to decide issues raised for the first time in a reply brief. (People v. Senior, supra, 33
Cal.App.4th at p. 537.) Absent a showing of good cause, issues raised for the first time in a
reply brief may be deemed forfeited. (People v. Adams (1990) 216 Cal.App.3d 1431, 1441,
fn. 2.)


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                                  William C. Ryan, Judge

                          Superior Court County of Los Angeles

                           ______________________________


             Antonio M. Zaldana, for Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney
General, for Plaintiff and Respondent.




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