Filed 9/22/16 P. v. Vasquez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069281
         Plaintiff and Respondent,
                                                                         (Kings Super. Ct. No. 13CM8743)
                   v.

AGUSTIN VASQUEZ,                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. Steven D.
Barnes, Judge.
         Allen G. Weinberg, 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, Louis M. Vasquez, Rachelle
Newcomb, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
                                      INTRODUCTION
       Appellant/defendant Agustin Vasquez was charged and convicted of count I,
sexual penetration of a minor over the age of 14 years old by means of force (Pen. Code,
§ 289, subd. (a)(1)(C));1 count II, sexual battery (§ 243.4, subd. (a)); and count III,
misdemeanor annoying or molesting a child (§ 647.6, subd. (a)(1)). The victim was his
16-year-old goddaughter, who testified that defendant entered her bedroom at night,
touched her vagina, and penetrated her genital area. Defendant denied her accusations
and claimed he just gave her a massage. He was sentenced to eight years in prison.
       On appeal, defendant contends the court should have granted his motion to
exclude his pretrial statements to a police officer because he requested a Spanish
interpreter, he was not provided with a translator, the officer conducted the interview in
English, he did not knowingly and intelligently waive his rights pursuant to Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda), and his statements were involuntary.2
       Defendant also contends his conviction for count I, sexual penetration of a minor
with force, must be reversed because there is insufficient evidence of penetration as
required by statute. In a related argument, defendant asserts the court had a sua sponte
duty to instruct the jury on attempted sexual penetration as a lesser included offense of
count I, and substantial evidence supported the instruction because of the victim’s
inconsistent statements about the nature and extent of the touching.
       Defendant further argues the court should have granted his motion for new trial,
based on trial counsel’s alleged ineffectiveness for failing to impeach the victim with her
pretrial statements to the police.
       Finally, defendant contends the court should have stayed the sentence imposed for
count II pursuant to section 654.

       1   All further statutory citations are to the Penal Code unless otherwise indicated.
       2   Defendant used a Spanish interpreter throughout the criminal proceedings.

                                               2
       We will modify defendant’s sentence and otherwise affirm.
                                           FACTS
       In 2013, Sonia M. was 16 years old. She lived in Avenal with her mother, two
brothers, and younger sister.
       Defendant was Sonia’s godfather. Sonia testified that defendant was like a second
father to her family after their own father left them. Sonia testified defendant was at their
house two or three times a week. Sonia and defendant spoke to each other in both
English and Spanish.
       Defendant often stayed overnight at Sonia’s house, and slept on the couch. Sonia
testified defendant and her mother were friends, but they did not appear to have a
romantic or sexual relationship. Everyone in the family got along with defendant. He
never touched or flirted with Sonia. Sonia occasionally saw defendant with various
girlfriends.
The night of the incident
       On the evening of May 16, 2013, defendant was at Sonia’s house. Sonia was there
with her mother and siblings. Everyone ate dinner together. Sonia’s mother worked a
nightshift and left for work. Defendant stayed at the house after she left.
       Sonia testified there was nothing wrong that night. Sonia further testified
defendant had never given her a massage, she did not need a massage that day, she did
not ask him for one, and she did not ask him to touch her. She had never seen defendant
give massages to her mother or siblings.
       Sonia and her six-year-old sister shared a bedroom, and they went to bed around
10:47 p.m. Sonia was wearing underwear, loose-fitting pajamas, and socks. Sonia’s bed
was closest to the door. The bedroom door was closed when Sonia fell asleep.




                                              3
The sexual assault
       Sonia testified she woke up in bed when she felt someone touch the skin of her
leg, under her pajamas. There was a light outside her bedroom window, and Sonia saw
defendant standing in front of her bed. Her bedroom door was open. Sonia testified it
was unusual for defendant to be in her bedroom.
       Sonia testified defendant sat on her bed. Defendant put both his hands through the
leg openings of her pajamas and touched her legs. He moved his hands up both of her
legs, under her pajamas. Sonia used her right hand and tried to flick away defendant’s
hand from her body. Defendant did not stop, and continued to move his hands up her
legs and toward her underwear.
Sonia’s testimony about penetration3
       Direct examination
       On direct examination, Sonia testified defendant continued to touch her legs, and
he moved his hands under the leg openings of her underwear. She felt his hand inside her
underwear, and felt his bare skin touch her bare skin.




       3The prosecution’s theory in support of count I, sexual penetration of a minor by
force, was that defendant penetrated Sonia’s vagina with his finger.
       On May 17, 2013, Sonia was interviewed by Avenal Police Officer Vargas about
what defendant did to her the previous night. As we will discuss in issue II, post,
defendant contends on appeal there is insufficient evidence to support count I because
Sonia gave inconsistent statements at trial, and in her pretrial statement to Vargas, as to
whether defendant penetrated her vagina. In issue IV, post, defendant argues his motion
for new trial should have been granted because defense counsel was prejudicially
ineffective for failing to cross-examine Sonia about inconsistencies between her pretrial
statement to Vargas and her trial testimony, about whether defendant penetrated her
vagina. In order to address these issues, we must extensively review the Sonia’s direct
and cross-examination testimony at trial about how and where defendant touched her
body.
                                             4
       In response to the prosecutor’s questions, Sonia testified defendant touched her
“private part,” and said that was the same area that she wiped herself after urination.
Sonia testified defendant touched her private part with his hand.
       Sonia testified that as defendant touched her “private part,” she again tried to flick
his hand away from her body. She also spoke to him in Spanish and told him to leave her
alone. However, defendant did not stop and continued to touch her. Sonia testified she
did not call for help or try to leave her bedroom because “I was scared and I didn’t know
what to do.”
       The prosecutor presented Sonia with a diagram which showed drawings of a
person’s front and back. The prosecutor asked Sonia to mark the diagram to show where
defendant touched her body. The prosecutor presented Sonia with a second diagram
which showed a female’s “private part,” and asked her to mark the area where defendant
touched her. Sonia drew a circle, and testified defendant touched her “inside” the circle
that she had just drawn.

             “Q. Do you know the name of the body part that you just saw, the
       People’s Exhibit 2?

               “A.   Yeah.

               “Q.   What is the name of the body part?

               “A.   The vagina.

               “Q.   And was your vagina touched?

               “A.   Yeah.

               “Q.   And how was it touched?

               “A.   What – with the hand.

               “Q.   With the defendant’s hand?

               “A.   Yeah.


                                              5
               “Q.      Did you feel his hand bare skin touching your bare skin?

               “A.      Yeah.” (Italics added.)
       Sonia testified no one else had ever touched her private part or vagina. She did
not like how it felt.
       Cross-examination
       On cross-examination, defense counsel asked Sonia about where defendant
touched her.

              “Q. … And you are saying that [defendant] touched you in a
       private part?

               “A.      Yes.”
       Defense counsel turned to Sonia’s pretrial statement to Officer Vargas about the
incident, and asked her what she told Vargas.

               “Q. [Officer Vargas] asked you if [defendant] put his finger
       inside, and I know there’s a picture here and it’s People’s Exhibit 2, and
       I’m going to show you…. [¶] I’m going to show you People’s Exhibit 2.
       Did – do you remember if the officer showed you a diagram picture just
       like this?

               “A.      Yeah.

             “Q. Okay. And do you remember if [Vargas] asked you if
       [defendant] put his finger inside?

               “A.      Yeah.

            “Q. We’ll call it ‘vagina,’ the word they use here; do you
       remember that?

               “A.      Yeah.

               “Q.      And do you remember saying no.

               “A.      Yes.

            “Q. And [Vargas] asked you again and you said yes; do you
       remember that?

                                                  6
               “A.   No.”4 (Italics added.)
       Defense counsel next asked Sonia if Officer Vargas asked her if defendant put his
hands “inside” her “opening,” and whether Sonia said yes. Sonia testified that she said
yes to Vargas.

               “Q. Okay. And then [Vargas] asked you the same question again
       just a little while later and you said that you weren’t sure?

               “A.   I don’t remember.

             “Q. Do you remember that? Okay. When he asked you if he
       touched any part of this and you said ‘I’m not sure I think yeah’?

               “A.   I don’t remember.”
       After additional questions, defense counsel returned to the subject of Sonia’s prior
statement to Officer Vargas.

              “Q. And during that incident when you spoke to the officer, did
       you tell him that [defendant] put his finger inside your private part?

               “A.   I don’t remember.

               “Q.   I’m sorry?

               “A.   I don’t remember.

               “Q.   You don’t remember?

               “A.   Huh-uh.

               “Q.   Okay. Did [defendant] put his finger inside your private
       part?

               “A.   I don’t remember.” (Italics added.)



       4 As we will discuss in issue IV, post, defendant argues his new trial motion
should have been granted based on defense counsel’s alleged ineffectiveness for
purportedly failing to introduce Sonia’s statement to Vargas, that defendant did not put
his finger in her vagina.

                                              7
       Defense counsel asked Sonia if she remembered that Officer Vargas asked her
several times if defendant’s finger went inside her private part, and she said yes and then
said she did not know. Sonia testified that she remembered being asked the question, but
she did not remember her answer.
       Sonia testified she did not know why she did not remember what she told Vargas.
Defense counsel asked if she lied to Vargas. Sonia said she was not lying, she
remembered things better at the time it happened because time had passed, and since then
“I will talk about this to no one.”
       Defense counsel showed Sonia the transcript of her interview with Officer Vargas,
asked her read a certain portion, and asked if that refreshed her memory about whether
she said defendant put his finger in her private part. Sonia testified it did not help refresh
her memory. Sonia again testified she told the truth to Vargas.
       Redirect examination
       On redirect examination, the prosecutor returned to the question of where
defendant touched Sonia.
              “Q.     … What part of the defendant’s body touched your vagina?
       [¶] … [¶]
              “A.     Um, his palm.
              “Q.     His palm? And why did you think that it was his palm that touched
       your vagina?
              “A.     Because – I don’t know.
              “Q.     Is that how you felt?
              “A.     Yeah.”
       The prosecutor asked Sonia to look at the diagram shown in Exhibit No. 2, and
whether defendant’s palm “made contact” with the area she had circled. Sonia said yes.



                                              8
       Sonia testified she told the truth to Officer Vargas, but she was nervous and scared
during the interview because the incident had “barely happened.” She did not tell Vargas
every single thing that happened that night.
       The prosecutor again asked Sonia how defendant touched her:
              “Q.    Now to clarify, did the defendant touch you in the vagina?
              “A.    Yes.” (Italics added.)
       Recross-examination
       On recross-examination, defense counsel immediately asked Sonia to explain her
last answer to the prosecutor, that defendant touched her in the vagina:

              “Q. Sonia, the prosecutor just asked you if [defendant] touched
       you in the vagina and a little while ago you said you didn’t remember and I
       showed you documents and you still didn’t remember saying no and right
       now you just said yes he did. Is there something that happened right now
       between the time I asked you and the time the prosecutor asked you that
       triggered your memory?

              “A.    I don’t get your question because you like you talk really fast.

              “Q.    I’m sorry?

              “A.    I don’t get your question.

              “Q.    You didn’t understand my question?

              “A.    No.

              “Q. And so when [the prosecutor] said ‘touch you in the vagina’
       you said yes without hesitation?

              “A.    Yeah.

             “Q. Did you just say that because [the prosecutor] asked it that
       way or because [defendant] actually … [¶] touched you inside your
       vagina?

              “A.    He did touch me.

              “Q.    Oh, he did?

                                               9
              “A.     Yeah, but you were asking me another question.

             “Q. Okay. But when the officer asked you you said he didn’t, do
       you remember that?

              “A.     No.” (Italics added.)
       Defense counsel asked Sonia whether she saw defendant’s palm touch her vagina.
Sonia said no.
After the sexual assault
       Sonia testified the entire touching definitely lasted longer than a minute, but she
could not say whether it lasted longer than five minutes. The touching of her vagina
lasted longer than 30 seconds, but she could not say whether it lasted longer than one
minute. Sonia just estimated the time because she was not looking at a clock.
       Defendant did not say anything as he touched her. He did not make any sounds,
and he did not touch himself during the incident. He never held her down. He did not
threaten her. He did not tell her not to tell her mother or her brothers.
       Sonia testified no one had touched her like that before, and it was not a massage.
       At some point, defendant stopped touching Sonia. He told her to wake him up in
the morning so he could take the children to school. Sonia did not reply because she did
not want to talk to him. She was scared because no one had touched her like that before,
and she did not like it.
       Defendant walked out of Sonia’s bedroom and left the door open. Sonia got up
from her bed, and closed and locked the bedroom door so he could not return. She sat on
the floor and cried, and then returned to bed and cried. Sonia testified her younger sister
was in the bedroom during the entire incident. Sonia believed her sister slept through it.
Sonia did not wake her because she did not want her sister to become scared.
       At some point that night, Sonia sent text-messages to her boyfriend, who lived
near Sacramento. She told him that defendant touched her inappropriately. After she
texted with him, she fell asleep.
                                              10
The next morning
       The next morning, Sonia helped her sister get dressed for school. Sonia asked her
younger brother if defendant was still there, and he said yes. Defendant had slept on the
couch as usual. Sonia stayed away from the living room and kitchen because she did not
want to see defendant.
       Defendant took Sonia’s two younger siblings to school. Sonia locked the front
door after they left because she did not want defendant to come back. Sonia took a
shower and waited for her mother to get home. Her 18-year-old brother was still asleep.
She did not tell her older brother what happened because she didn’t talk to him “like that
so I didn’t know how to tell him.”
       In the morning, however, Sonia’s boyfriend contacted her older brother. Her
brother asked Sonia if it happened, and Sonia said yes. Sonia cried and her brother
hugged her. Sonia and her brother woke up their mother and told her what happened.
Sonia’s interview with Officer Vargas
       On May 17, 2013, Officer Vargas conducted a recorded interview with Sonia
about what defendant did to her the previous night. Neither the prosecution nor the
defense introduced before the jury the recording or the transcript of Vargas’s interview
with Sonia. As set forth above, however, defense counsel used the transcript to cross-
examine Sonia about alleged inconsistencies between her statements to Vargas and her
trial testimony.
       In addition to the cross-examination discussed above, defense counsel also elicited
from Sonia that she never told Officer Vargas that she had a boyfriend or she texted him
about the incident. Sonia told Vargas that she told her brother about the incident, but she
did not tell Vargas that her boyfriend told her brother. Sonia testified she told Vargas
that it was midnight when defendant started touching her, because her cellphone was next
to her and she looked at it when she woke up. She told Vargas that defendant touched

                                            11
her for about an hour because she looked at the clock when he left her bedroom. She
never told the officer that she locked the bedroom door after defendant left.
Defendant’s pretrial statements
       Officer Vargas testified that after he interviewed Sonia, he contacted defendant the
same day at his workplace at Harris Ranch Restaurant in Coalinga. He drove defendant
to the Avenal Police Department, and conducted a recorded interview for one hour. He
advised defendant of the Miranda warnings in English.5 Vargas testified defendant
understood his rights, and answered his questions in English. Vargas testified he did not
use an interpreter because he did not feel one was needed, and he was able to
communicate with defendant in English.
       Officer Vargas testified he never felt there was any miscommunication or
misunderstandings with defendant during the interview. Whenever defendant had
questions, Vargas took time to go over the questions methodically “so he would
understand exactly what I was asking him.” Vargas testified there were times he went

       5  As we will discuss in issue I, post, defendant moved to exclude his pretrial
statements to Vargas. Defendant argued his statements were obtained in violation of
Miranda and involuntary because defendant asked for a Spanish translator but Vargas
failed to provide an interpreter, advised him of the Miranda warnings in English, and
questioned him in English. The court listened to the entire recording and denied the
motion to exclude. At trial, both the prosecutor and defense counsel used the transcript
of the interview when they questioned Vargas and defendant about his pretrial
statements. The parties did not move to introduce the recording or the transcript of the
Vargas/defendant interview into evidence before the jury. However, these materials are
part of the appellate record because the trial court and the parties agreed to lodge into the
trial record the transcript and CD with the audio recording for purposes of review, and
this court granted defendant’s motion to augment the record with these items. We will
fully address that interview in issue I, post.
       As we will discuss in issue IV, post, the same CD also contained the audio
recording of Officer Vargas’s interview with Sonia, and the front of the CD states that it
contains both interviews. The recording was not introduced into evidence before the
jury, but defendant relied on portions of that interview in support of his motion for new
trial.

                                             12
back and re-asked questions to make sure defendant “understood exactly what I was
asking before he answered.” Vargas further testified it was very common to repeatedly
ask the same questions even to an English-speaking subject.6
       Officer Vargas testified that in response to his questions, defendant said Sonia was
his goddaughter and he went to the family’s house two or three times a week. He usually
slept on the sofa. Defendant thought Sonia was 17 years old.
       Officer Vargas testified that defendant said he was at Sonia’s house the previous
night, on May 16, 2013, and Sonia and her siblings were there. Defendant said he gave
Sonia a massage to relax her. Defendant initially said he massaged from her neck down
to her feet. The skin of both his hands touched her body. Defendant said he also
massaged her thighs and “pretty much her whole leg area.”
       Officer Vargas asked defendant if he touched her groin area. Defendant said it
was possible that he touched her vagina while touching her upper thigh. Vargas asked
defendant if he touched Sonia between her legs. Defendant said yes. Vargas asked
defendant if was possible that his DNA was on her panties. Defendant said it was a
possibility.
       Officer Vargas asked defendant if he thought it was appropriate for a 49-year-old
man to give a massage to a minor female. Defendant initially said he did not know.
Defendant then said he did not feel it was appropriate to do so on her bed in her bedroom.
       Cross-examination of Officer Vargas
       On cross-examination, defense counsel asked Officer Vargas if defendant
repeatedly denied that he touched Sonia’s vagina. Vargas testified defendant said it was
possible he touched her vaginal area. After reviewing the interview transcript, Vargas


       6 In issue I, post, we will extensively review the transcript of Officer Vargas’s
interview with defendant, and find that defendant validly waived his Fifth Amendment
rights and his statement was voluntary.

                                            13
testified he asked defendant several more times whether he touched her vagina.
Defendant said he did not put his hands on her vagina. Vargas testified he repeatedly
asked these questions to clarify and make sure defendant understood. Vargas never felt
there was a language barrier where defendant could not understand his questions.
       Defense counsel asked Officer Vargas if defendant denied that he touched Sonia
between the legs. Vargas testified defendant initially denied it. Later in the interview,
Vargas again asked defendant where he touched Sonia’s body. Vargas asked defendant
to demonstrate, and defendant “actually touched his own body indicating where he
pointed and his hands did touch the inner side of his legs, and he indicated to me where
he massaged her.” Vargas testified that when his questions became more
“interrogational,” defendant denied touching her buttocks or between the legs.
       On redirect examination, Officer Vargas testified he repeatedly asked defendant if
he touched Sonia’s vagina. Later in the interview, defendant said it was a possibility.
                                        DEFENSE
       Teresa Rodriguez, Maria Jauregui, and Iba Biggs testified they had known
defendant for years, and he was a good and hardworking man. Their children had been
around him, and they never saw him act inappropriately against children or anyone else.
Defendant’s trial testimony
       Defendant testified he was 49 years old and had lived in the United States for over
35 years. He went to high school for six months. At the time of his arrest, he was
working at a taco shop in Huron. He spoke Spanish and English to the customers but he
could not hold a conversation in English. He also worked at Harris Ranch Restaurant as
a food runner to serve the tables. He had worked at Harris Ranch for 33 years, and he
was trained to do his job in Spanish. He spoke to the customers in Spanish and English.




                                            14
      Defendant testified he had known Sonia’s mother for many years but they did not
have a romantic relationship. Defendant said he spoke English “between 10 and 15
percent.” He understood “some things, there are other things I do not understand.” He
always spoke Spanish to Sonia’s mother and his own children. Sonia was his
goddaughter, and he felt that she was his daughter. He frequently stayed overnight at the
house and helped take the children to school.
      Defendant testified it was normal for him to massage people. He had previously
given massages to Sonia’s mother and brothers. On previous occasions, he gave
massages to Sonia in the living and dining rooms, but he had never done so in her
bedroom.7
      Defendant said he did not feel any sexual gratification from giving massages. He
also gave massages to both male and female coworkers if they wanted them. He was not
trained and had never been paid to give massages.
      Defendant testified that on May 16, 2013, he went into Sonia’s bedroom at 11:57
p.m. He had heard her slamming doors earlier in the night, and there had been an
argument between Sonia’s mother and another person. Defendant knocked on Sonia’s
bedroom door because he was going to tell her to wake him up in the morning so he
could take the children to school. Her younger sister was asleep in bed. Both defendant
and Sonia were fully clothed and standing up. He asked if she wanted something to eat.
Sonia seemed nervous. Defendant asked if she wanted a massage. He did not have any
sexual purpose.
      Defendant testified Sonia laid on the bed on her right side, with her back towards
the outside of the bed. He massaged her from her temples down to her feet, and skipped
her buttocks. He did not touch her breasts, vagina, or buttocks, and he never reached

      7 Sonia testified defendant had never given her a massage, and she had never seen
him give massages to her mother or siblings.

                                           15
under her pajamas or underwear. She never pushed him away or said anything. She did
not act uncomfortable. The bedroom door was open; she never tried to walk or run away
from him. He did not use force or threaten her.
       Sonia’s sister did not wake up during the massage. He massaged Sonia for three
or four minutes.
       When he finished the massage, he told Sonia to wake him in the morning so he
could take the children to school. Defendant said goodbye. He pushed the button lock to
her bedroom door and closed it. He went to sleep on the sofa. In the morning, he took
the younger children to school and never saw Sonia.
       Defendant testified that when he was interviewed by Officer Vargas, he explained
that he spoke Spanish and asked for an interpreter. Vargas promised to get an interpreter
but never produced one. The entire interview was conducted in English.
       Defendant testified he understood about 40 percent of the interview, but he could
not understand approximately 60 percent of the interview. He did not feel well “because
I couldn’t express myself as I’m doing now,” since he used an interpreter at trial.
       Defendant testified he told Officer Vargas several times that he did not touch
Sonia’s vagina. Vargas asked if he massaged Sonia for sexual reasons. Defendant said
no. He did not think Vargas understood him.
                                      DISCUSSION
I.     Admission of Defendant’s Pretrial Statements
       Defendant contends the court should have granted his motion to exclude Officer
Vargas’s testimony about defendant’s pretrial statements because he did not understand
English, he asked for a Spanish translator at the beginning of the interview, and a
translator was not provided. Defendant argues his Miranda waiver was invalid and his
statement was involuntary because Vargas advised him of the Miranda warnings in
English and the entire interview was conducted in English.

                                            16
       A. Miranda and Voluntariness
       We begin with the well-settled principles about Miranda waivers and
voluntariness. “Miranda holds that ‘[t]he 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;
People v. Combs (2004) 34 Cal.4th 821, 845.)
       “[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.] We have recognized that a valid waiver of Miranda rights may be express or
implied. [Citations.] A suspect’s expressed willingness to answer questions after
acknowledging an understanding of his or her Miranda rights has itself been held
sufficient to constitute an implied waiver of such rights. [Citations.] In contrast, an
unambiguous request for counsel or a refusal to talk bars further questioning. [Citation.]”
(People v. Cruz (2008) 44 Cal.4th 636, 667–668 (Cruz).)
       In addition, “ ‘[a]n involuntary confession is inadmissible under the due process
clauses of both the Fourteenth Amendment to the federal Constitution [citation] as well
as article I, sections 7 and 15 of the California Constitution [citation].’ [Citation.]”

                                              17
(People v. Dowdell (2014) 227 Cal.App.4th 1388, 1400–1401.) “ ‘The due process
[voluntariness] test takes into consideration “the totality of all the surrounding
circumstances – both the characteristics of the accused and the details of the
interrogation.” ’ [Citation.] This test ‘examines “whether a defendant’s will was
overborne” by the circumstances surrounding the giving of a confession.’ [Citation.]”
(People v. Guerra (2006) 37 Cal.4th 1067, 1093, overruled on other grounds by People v.
Rundle (2008) 43 Cal.4th 76, 151.)
       The prosecution bears the burden of establishing, by a preponderance of the
evidence, that the suspect’s Miranda waiver was knowing and intelligent, and that his
statement was voluntary and not obtained in violation of due process. (People v. Guerra,
supra, 37 Cal.4th at p. 1093; People v. Whitson (1998) 17 Cal.4th 229, 248; People v.
Bradford (1997) 14 Cal.4th 1005, 1034.) On appeal, we conduct an independent review
of the trial court’s legal determinations, and rely on its factual findings on disputed facts
if supported by substantial evidence. (People v. Williams (2010) 49 Cal.4th 405, 425;
People v. Holloway (2004) 33 Cal.4th 96, 114; People v. Bradford, supra, 14 Cal.4th at
pp. 1032–1033.)
       When an interview is tape-recorded, the facts surrounding an admission or
confession are undisputed, making the issue subject to our independent review. (People
v. Linton (2013) 56 Cal.4th 1146, 1176–1177.)
       With this background in mind, we turn to the court’s evidentiary hearing on the
admissibility of defendant’s statement, the actual recording of the interview, and the
court’s ruling that his Miranda waiver was knowing and intelligent, and his statement
was voluntary and admissible.
       B. Officer Vargas’s Hearing Testimony
       When the prosecution moved to introduce defendant’s pretrial statements to
Officer Vargas, defense counsel objected and argued defendant’s statements were

                                              18
obtained in violation of Miranda and involuntary because he was interviewed in English
even though he requested a Spanish interpreter before the interview, and he needed an
interpreter for the criminal proceedings. Counsel argued defendant “stumbled” through
the interview, he never understood the Miranda advisement or the questions that were
asked, and his statements should be excluded.
       The court conducted an evidentiary hearing pursuant to Evidence Code section
402 to address the issue. Officer Vargas was the only witness; defendant did not testify.
As noted above, the court and the parties agreed to lodge the transcript and the CD with
the audio recording of the interview into the record, and we granted defendant’s motion
to augment the appellate record with those materials.
       Officer Vargas testified that he advised defendant of the entirety of the Miranda
warnings in English from his department-issued card. After reading the rights, Vargas
asked defendant if he understood. Vargas testified that the transcript stated that
defendant replied in Spanish. However, Vargas recalled that defendant’s reply was
“ ‘mas o menos.’ ” Vargas testified that he knew that meant “more or less.”
       Officer Vargas testified that he asked defendant what he did not understand, and
that he could explain it to him. Vargas testified defendant said he did not want to answer
in English because his first language was Spanish. Vargas asked how long he had been
speaking English. Defendant said it had been nine or 10 months, since he had become a
server. Defendant said he knew basic English, but he had never studied English.
       Officer Vargas testified he did not attempt to find a Spanish interpreter because
defendant’s answers “were very articulate with my questions and they were very
consistent and if I felt like I needed a Spanish speaking translator I would have got one.”
       Officer Vargas testified he told defendant they would give it a try in English. He
again read the Miranda warnings to defendant in English, and this time he read them line-
by-line. In response to each advisement, defendant said he understood.

                                             19
       Officer Vargas then began asking questions about the investigation. Vargas
testified defendant answered the questions in English, his speech was coherent, he
answered in complete sentences, and his answers were responsive to each question.
       After hearing Officer Vargas’s testimony, the court stated that it wanted to listen
to the recording of the entire interview to determine “if the defendant truly does not
understand enough English to understand the Miranda warnings that were given to him in
English,” and whether “there’s a substantial probability that he didn’t understand them.”
The parties stipulated that the court could listen to the audio recording of the entire
interview and review the transcript in chambers.
       C. Officer Vargas’s Recorded Interview with Defendant8
       The recording reflects that Officer Vargas and defendant spoke English for nearly
the entirety of the interview. There are limited sections where defendant and Vargas
spoke Spanish; the transcript does not include what defendant said in Spanish or translate.
       At the beginning of the interview, Officer Vargas said he was with the Avenal
Police Department, and asked defendant if he was okay and if he wanted something to
drink. In the course of this initial exchange, defendant said he had worked for Harris
Ranch for 32 years.
       Officer Vargas read the entirety of the Miranda warnings to defendant in English,
without taking a break as he read each sentence, and asked defendant if he understood.



       8 The trial court listened to the entirety of the audio recording of Officer Vargas’s
interview with defendant to determine whether defendant’s statements should be
excluded as obtained in violation of Miranda and involuntary. This court has also
listened to the entirety of the audio CD of the interview to address defendant’s appellate
contentions, and we have quoted from relevant portions of the transcript.
        At trial, the parties did not introduce any part of the audio recording or the
transcript into evidence before the jury. However, the parties used limited excerpts from
the transcript to question Vargas and defendant when they testified.

                                             20
The transcript states that defendant replied in Spanish, but does not state the Spanish
words or offer a translation.
       As explained above, however, Officer Vargas testified at the evidentiary hearing
that defendant’s Spanish reply was “ ‘mas o menos,’ ” which Vargas interpreted as
meaning “more or less.”
       Officer Vargas asked defendant, “What don’t you understand? I can explain it to
you.” Defendant said, “My, my, I, if you don’t ha--, you don’t, question I was gonna a--,
I wanna answer the right answers, uh,” and “Uh, I don’t wanna answer in English
because I, for my first language is Spanish. You know what I mean?”
       Officer Vargas asked defendant how long he had been speaking English.
Defendant said since he became a “server” for “like nine months, ten months. I was, I
was a food runner before.”

             “[Defendant:]         So, to c-, to be on (inaudible) people because
       uh, my English is not…

              “Vargas:             Your English is very good.

              “[Defendant]:        Yeah, it’s it’s pretty good (inaudible)

              “Vargas:             It’s longer than nine months.

             “[Defendant]:       But sometimes when they, when they ask me
       some, some questions I’m not sure like, you know?

              “Vargas:             Well, I’ll try to explain it…

              “[Defendant:]        I know most of the basic English…

              “Vargas:             Okay.

              “[Defendant:]        Because I never study Eng--, English.”
       Officer Vargas told defendant he would “make sure and explain what I, what I ask
… slowly so, you’ll understand it.” Defendant replied: “Okay, perfect.”


                                             21
            “Vargas:              If you don’t understand … you can just … just
      ask me that, if you have any further questions…

              “[Defendant]:        Mm hmm.

             “Vargas:              And I can get somebody that speaks Spanish to
      explain it in Spanish if you need it. Okay?

              “[Defendant]:        I probably feel more comfortable with it.

              “Vargas:            Okay, we’ll, we’ll give it a try with English and
      if you need a Spanish, uh translator…

              “[Defendant]:        (inaudible) okay.

              “Vargas:            We can do that for you … we have a Spanish
      officer on duty and they can help me out a little bit.” (Italics added.)
      Officer Vargas asked defendant whether he understood the rights he had read to
him. Defendant replied, “What are my rights?”
      Vargas then read and explained each right separately:

            “Vargas:               Okay, you have the right to remain silent, okay?
      Do you understand?

              “[Defendant]:        What is that?

            “Vargas:               You have the right to remain silent. That means
      you have the right to, not to talk to me.

              “[Defendant]:        Oh, oh, okay.

              “Vargas:            Okay? You, anything you say can and will be
      used against you in a court of law. Anything that we talk about today can
      and it probably will be used in court later on, in the future if we go to court.

              “[Defendant]:        Yeah, I, I’m fine.

              “Vargas:             You understand?

              “[Defendant]:        I’m ready for it. I’m available to, very good,
      yeah.

              “Vargas:             You unders-, you understand that? Yes?

                                            22
             “[Defendant]:        Yeah, I understand that.

            “Vargas:             You have the right to talk to a lawyer and have
      him present with you while you’re being questioned. You know what a
      lawyer is? You don’t know what a lawyer is?

             “[Defendant]:        A lawyer, yeah. Defender, uh …

            “Vargas:            Yeah. You have a right to have a lawyer and
      have him with you before any questioning …

             “[Defendant]:        Mm hmm.

            “Vargas:             If you wish. If you cannot afford one, if you
      have no money to pay for a lawyer, one will be given to you for free.

             “[Defendant]:        That’s good.

             “Vargas:             So, you don’t have to worry about …

             “[Defendant]:        That sounds good.

             “Vargas:             No, paying any bills. You understand?

             “[Defendant]:        Uh huh.

             “Vargas:             M’kay. So, you understand your rights, yes?

             “[Defendant]:        I understand my rights.”
      Officer Vargas asked defendant for personal information, and defendant answered
the questions in English without hesitation. Defendant said he worked at Harris Ranch in
Coalinga, gave his street address and telephone number, and said he had lived there for
more than 10 years. His mother lived in Lemoore, his siblings lived in Fresno and
Clovis, his wife lived in Mexico, and his son lived at Harris Ranch.
      Defendant said he was a food runner and server at Harris Ranch and also worked
at Chris Meat in Huron.
      Defendant said he worked and went to church. Officer Vargas asked if he did
anything else. Defendant said he sometimes visited someone in Avenal, and used a


                                            23
Spanish word. Vargas replied in Spanish, and asked defendant if he meant he visited his
goddaughter, Sonia. Defendant said yes. Vargas asked if he knew what a godfather was.
Defendant said he presented Sonia when she was baptized.
       Officer Vargas asked defendant if he knew Sonia’s age. Defendant thought she
was 17 years old. Vargas asked for the name of Sonia’s mother, defendant identified her,
and said Sonia’s family lived together in the same house. Vargas asked how often he
visited them. Defendant said two or three times a week, and sometimes Sonia’s mother
called and invited him over, and he would bring over hamburgers.
       Officer Vargas asked defendant about what happened the previous night at Sonia’s
house. Defendant said he slept on the sofa in front of the television. Vargas asked who
else slept in the house that night. Defendant said Sonia and her three siblings, and
identified each child.
       Officer Vargas asked defendant if anything unusual happened while he was
sleeping on the couch. Defendant responded in long, narrative paragraphs in English. He
said Sonia “came in” and told him that she could not sleep. Defendant heard noise
coming from her room, and she had closed the bedroom door hard three times.
Defendant said an hour later, he went to check on Sonia, and she opened her bedroom
door. Defendant asked her to set the alarm so he could take the kids to school in the
morning. Defendant asked Sonia what her problem was and why she couldn’t sleep.
Sonia said “she has some problems with being uh, angry. She’s angry.” Defendant asked
if she wanted a hamburger. Sonia said she was okay and would go to sleep.
       Defendant said he asked Sonia if she wanted to relax and needed a massage.
Defendant said he gave her a massage, she relaxed, and he went back to the sofa and
went to sleep.
       Officer Vargas asked where defendant massaged her. Defendant said “practically
… the whole body,” and from “the neck to the toe.” Vargas asked, “And everything in

                                            24
between?” Defendant said no. Vargas asked if he used his hands; defendant said yes.
Vargas asked if she was wearing clothes; defendant said yes. Vargas asked if he touched
her skin. Defendant said, “From maybe there.” Vargas clarified, “From the feet?”
Defendant said, “[Y]eah, from the head right there ….”
         Officer Vargas asked defendant if he touched Sonia’s knee, thigh, head and arms.
Defendant said yes, and it was just a massage. Vargas asked if he pulled up her pants
legs. Defendant said, “Just a little.” Vargas asked if he put his hands under her pants.
Defendant said no. Defendant said he touched her arms and head just to “relax her.”
         Officer Vargas asked defendant if he ever touched Sonia’s “groin area.”
Defendant said, “Not right there.” Vargas asked defendant to show him what the groin
area was. Defendant apparently gestured and said he thought “that was like this,” and
“from here to the back.”
         Officer Vargas asked defendant whether he thought it was appropriate for a 49-
year-old man to give a massage to a minor. Defendant said, “If you do it … in a bad
way, it’s bad. Right?” Vargas again asked defendant if he thought it was appropriate to
give a 16 or 17-year-old female a massage on her bed in her bedroom. Defendant said, “I
think not.”
         Officer Vargas told defendant he investigated these types of crimes, and asked
whether he touched “her thigh, her skin area, right here in this general area, did you touch
that when you were massaging her?” Defendant said he did. Vargas asked if his hand
touched her skin, and whether defendant understood what he meant. Defendant asked if
he meant “[w]ith the hands.” Vargas said yes. Defendant replied, “Yeah, yes I did,
yeah.”
         Officer Vargas asked defendant how his hand touched the skin of her leg “right
here? And I’m pointing to my thigh area,” and if his hand went “up the pants” to
“massage the leg?” Defendant said he did not remember. Vargas said he remembered

                                             25
just a minute ago, and again asked if he touched Sonia’s legs inside her pants. Defendant
said yes. Vargas asked defendant if he pulled up her pants leg high so he could massage
“this area” of her leg. Defendant said yes, but he did not get “close” and said she was
wearing pants.
       Officer Vargas asked defendant if he touched Sonia between her legs. Defendant
said no, that he just gave her a massage over her pants.
       Officer Vargas asked defendant if Sonia was wearing panties that night; defendant
said yes. Vargas asked defendant if he knew what DNA was. Defendant said something
inaudible and “that’s the marks.” Vargas said it was kind of like fingerprints. Defendant
said that he understood. Vargas asked defendant if his “fingerprints, your D-N-A, is
gonna be found on her panties.” Defendant asked, “why does it have to be in the
underwear?” Vargas told defendant that if he touched his shirt, his DNA would be found
on the shirt. Vargas asked defendant if he understood. Defendant said yes. Vargas again
asked defendant if his DNA would be found on her panties.9

              “[Defendant]:        I don’t think so.

              “Vargas:             Is there a possibility?

              “[Defendant]:        Probably.

              “Vargas:             Probably, and why…

              “[Defendant]:        If you, if you (inaudible)


       9 There was no DNA evidence in this case. An officer’s ruse or deception about
physical evidence does not render a statement involuntary. (People v. Maury (2003) 30
Cal.4th 342, 411.) “Police trickery that occurs in the process of a criminal interrogation
does not, by itself, render a confession involuntary and violate the state or federal due
process clause…. [¶] So long as a police officer’s misrepresentations or omissions are
not of a kind likely to produce a false confession, confessions prompted by deception are
admissible in evidence. [Citations.]” (People v. Chutan (1999) 72 Cal.App.4th 1276,
1280, italics in original.)

                                            26
              “Vargas:              Then why would there, why is there a
       possibility that your fingerprints would be on her panties during the
       massage? Were you massaging her vagina?

              “[Defendant]:        That’s true.”
       Officer Vargas asked defendant what he meant, and whether he knew what a
vagina was. Defendant said he did not know. Vargas gave a brief explanation of male
and female anatomy, and there was another exchange in Spanish.
       Officer Vargas asked defendant if there was a possibility he was massaging it,
using a Spanish word. Defendant said he did not know. Vargas spoke Spanish and added
in English, “That’s a vagina,” and that defendant knew what it was. Defendant again
spoke Spanish. Vargas said, “That’s a vagina, okay? Did you touch her vagina
yesterday, last night?” Defendant said no. Vargas again asked if he touched her vagina
with his hands because the evidence would come back. Defendant said that if “you got
me like this, I’m, I’m not sure if you got, if you gotta make, if you gotta make contact. I
don’t know….”

             “Vargas:              You don’t know if you made contact with her
       vagina?

              “[Defendant]:        I don’t, I, I’m, I’m…

              “Vargas:             Is there a possibility?

              “[Defendant]:        You know, I, I…

              “Vargas:             You did?

              “[Defendant]:        I don’t remember that.”
       Officer Vargas asked why he could not remember. Defendant replied, “Because I
never made contact with it.” Defendant said he did not pay attention and the massage
happened fast. Vargas asked if he could have touched her vagina if he wasn’t paying
attention. Defendant said he was being gentle and “going close.”


                                            27
       Officer Vargas again told defendant that his perspiration could have been left on
Sonia’s clothes and body, and asked if there was a possibility “that you touched her
vagina.” Defendant said he did not do it “in a bad way.” Vargas asked defendant why he
touched her vagina. Defendant said, “I didn’t touch her (inaudible).”
       Officer Vargas asked why he didn’t feel something bad if he touched her vagina.
Defendant again said he did not touch her vagina, and asked Vargas if Sonia told him
that. Vargas said the girl would not lie, and she was hurt because defendant had betrayed
her, he could make things right, and asked why he touched her vagina and whether it was
an accident. Defendant said, “Probably, I don’t’ know. That’s, that’s, I don’t, I don’t
feel, I don’t feel, if I touch it or not, I just, I just be like, like that ….”

            “Vargas:             So, you went, you went in between the legs?
       You went between the legs?

               “[Defendant]:       Yeah, I be, I be like, like that and I just be like,
       like the whole, the whole, the whole back….”
       Officer Vargas asked defendant why he touched her “down there.” Defendant
replied, “I don’t touch right there. I, I’m telling you….” Vargas said defendant had
already told him that earlier, and said he went fast during the massage. Defendant said he
did not say he touched “in here.” Vargas said it may not have been his intention or what
his mind was thinking, but “you still probably touched her vagina.”

               “[Defendant]:           Possibly?

               “Vargas:                A possibility?

               “[Defendant]:           There’s a possibility, yeah.”
       As the interview concluded, Officer Vargas told defendant that he spoke and
understood English very well. Defendant said he understood, but sometimes there were
things he did not understand.



                                                 28
               “Vargas:             But, for the most part, did I explain myself
       well?

               “[Defendant]:        I understand you.

               “Vargas:             I explained myself well, right?

               “[Defendant]:        Yeah…

               “Vargas:             Okay, so, you understood me? Okay?

              “[Defendant]:         I don’t know what is the, um, the real situation?
       I don’t understand it….

             “Vargas:               Well, the real situation is you touched a female
       inappropriately, a minor.

          “[Defendant]:     I understand that….”
       D. The Court’s Ruling
       After the court listened to the recording of the entire interview, it found by a
preponderance of the evidence that defendant’s Miranda waiver was valid, and the
entirety of his statement was voluntary.

               “The Court initially had substantial doubts by listening to the
       parties’ argument, however, listening to the audio the Court is convinced
       that considering the totality of all of the circumstances that the waiver of
       Miranda rights in this case was knowing, voluntary, and intelligent. What
       was initially difficult for the Court was that the rights were read from the
       card and that the defendant indicated that it appeared to the Court he
       answered in a Spanish phrase which the Court understands but it’s not
       going to translate for these proceedings. The officer then went over the
       rights with the defendant one by one. As the interview progressed, which
       goes on for approximately an hour, it’s the Court’s opinion that the
       situation’s where the defendant did not initially seem to understand the
       question or the words the officer was using, it was brought to the officer’s
       attention and each one of those were explained. So it’s not a situation
       where the Court believes that the defendant answered the question yet
       actually had no knowledge of what the officer was asking so that there
       would be otherwise some confusion in that particular area.



                                             29
               “So the Court would find that the confession was voluntary as well
       as there being an implied waiver …, and I would note as well there was no
       intimidation, coercion, no deception, and that considering the totality of all
       the circumstances the waiver was made with a full awareness of both the
       nature of the right being abandoned and the consequences of the decision to
       abandon it is clear from the auditory record that I reviewed that that is set
       forth. In addition, although there was some discussion with respect to
       providing the Spanish language interpreter, there was no indication by the
       defendant that that should take place before any further statements be
       given.” (Italics added.)
       E. Trial Evidence
       During trial, Officer Vargas testified about defendant’s statement. The
prosecution did not introduce the audio recording or transcript of the interview. On
cross-examination, defense counsel extensively asked Officer Vargas about whether
defendant understood his questions. Counsel asked Vargas to review the transcript, and
Vargas testified that he initially advised defendant of the Miranda warnings in English,
defendant responded in Spanish, defendant said Spanish was his first language, and
defendant said he felt more comfortable talking in Spanish. Vargas testified he spoke a
little Spanish but he continued the interview in English.
       The prosecutor objected to defense counsel’s questions on this subject. The court
allowed defense counsel to continue. In response to additional questions, Officer Vargas
testified that defendant used “a few” Spanish words during the interview, but the majority
of his responses were in English. Vargas testified he never brought in a Spanish
interpreter even though one was might have been available.
       F. The Court’s Further Findings
       After defense counsel completed his cross-examination of Officer Vargas, the
court excused the jury and made additional findings about why it decided to admit
defendant’s pretrial statements to Vargas.
       The court explained the “turning point” for its ruling “was the extent of the
continued statements by [defendant], in fact, more emphatically it was clear to me that

                                             30
there were parts of the interview where he didn’t understand what the officer was saying,
and it appeared to me based on just listening to it that it wasn’t because he didn’t
understand English, it seemed to me that in my – I had trouble understanding sometimes
was the officer[] talked too quickly. And so – but whenever that happened, the defendant
was quick to point out to the officer he didn’t understand and the officer either explained
it or went over it with him just like he did with the Miranda warning. He went over it
line by line very carefully, methodically, and, you know, it wasn’t a slip shot interview at
that point. It might at first, and actually when I heard your argument it sounds like this is
a real issue. [¶] But when you actually listen to it it was clear to me that he was fully
able to understand it.” (Italics added.)
       As noted in the factual statement above, defendant testified on direct examination
that he spoke English “between 10 and 15 percent.” He understood “some things, there
are other things I do not understand.” He always spoke Spanish to Sonia’s mother and
his own children.
       During a break in defendant’s direct examination testimony, the court made
additional comments about why it admitted defendant’s pretrial statements:

       “[L]istening to the audio portion of the recording and listening to
       [defendant] testify today as far as the Court is concerned with respect to the
       recorded portion of that interview it’s like it’s two different people. [¶] I
       mean my interpretation of the statement and the things that happened
       during that interview was that that person understood, in my belief 90, 95
       percent of what the officer asked him and when he didn’t understand he
       told the officer he didn’t understand, and the officer took the time to
       explain it to him. So, anyway, I just wanted to add that.”10 (Italics added)



       10 In closing argument, the prosecutor acknowledged that defendant claimed he
did not understand English and felt it was not fair that Officer Vargas interviewed him in
English. The prosecutor reminded the jury that when defendant testified, there were
“multiple times” when he answered the attorneys’ questions without waiting for the
interpreter to translate. Defense counsel asserted that defendant might have been able to
                                             31
       G. A Defendant’s Language Abilities
       Defendant relies on the recording of his interview with Officer Vargas, and argues
his Miranda waiver was not knowing and intelligent, and all his statements were
involuntary, because Vargas never provided him with a translator even though defendant
asked for one.
       In considering the totality of the circumstances to determine if the defendant gave
a valid Miranda waiver, and whether his statement was voluntary for due process
purposes, the court takes into account the “background, experience, and conduct of the
accused” (People v. Davis (2009) 46 Cal.4th 539, 586), including the defendant’s
language abilities. (United States v. Bernard S. (9th Cir. 1986) 795 F.2d 749, 751
(Bernard S.), disapproved on other grounds in United States v. Dozier (9th Cir. 1988) 844
F.2d 701, 706; United States v. Heredia-Fernandez (9th Cir. 1985) 756 F.2d 1412, 1415;
United States v. Martinez (9th Cir. 1978) 588 F.2d 1227, 1235.)
       A defendant’s language abilities may impair his ability to give a knowing and
intelligent waiver, and render his statement involuntary. (See, e.g., United States v.
Heredia-Fernandez, supra, 756 F.2d 1412, 1415; United States v. Hernandez (10th Cir.
1990) 913 F.2d 1506, 1510.) “Language is not a stumbling block when the suspect is
advised of his rights also in a language that he ostensibly understands. [Citation.] It
becomes a more difficult problem when the Miranda rights are given in English only. In
these instances, the courts consider what effort the officer made to communicate, whether
the defendant responded that he understood his rights or ever indicated that he did not
understand them, and what the defendant displayed in English language skills.” (United
States v. Castorena-Jaime (D. Kan. 2000) 117 F.Supp.2d 1161, 1171.)



speak a little English, but there was still a language barrier and an interpreter should have
been provided since defendant’s life was at stake.

                                             32
       Defendant relies on United States v. Garibay (9th Cir. 1998) 143 F.3d 534
(Garibay), in support of his argument that his Miranda waiver and subsequent statements
were involuntary. In that case, the defendant was arrested after customs agents found
marijuana in his car. The agents asked the defendant if he understood English. The
defendant said yes. An agent read the Miranda warnings to the defendant in English.
Defendant indicated he understood the warnings, and he gave incriminating statements.
On appeal, defendant argued the trial court should have granted his motion to exclude his
statements because he did not understand the nature of the rights he was waiving, and he
did not understand the agent’s recitation of the Miranda rights in English, based on his
limited skills in English and his low mental capacity. (Id. at pp. 536–538.)
       Garibay held the defendant’s confession was obtained in violation of Miranda and
his waiver was invalid. Garibay noted the interrogating agent never offered the
defendant the option of conducting the interrogation in Spanish, and the defendant never
refused such an offer. The agent simply assumed the defendant was sufficiently
proficient in English to understand and waive his rights without the assistance of a
Spanish interpreter. The agent admitted that he had to rephrase questions when the
defendant did not seem to comprehend what he was saying. The defendant’s primary
language was Spanish, and he only understood a “few things” in English. He received
D+ grades in high school English, and received passing grades in classes that were taught
in Spanish. The witnesses at the suppression hearing included a clinical psychologist, the
probation officer, and the defendant’s former high school instructors, who testified they
always spoke to the defendant in Spanish at his request. His high school football coach
stated that the defendant often claimed to understand English, and gave the appearance of
comprehending English, when he was under stress and interacting with persons of
authority, but that he did not understand what was being said to him on those occasions.
There was also undisputed evidence that the defendant was “borderline retarded” with

                                            33
“extremely low verbal-English comprehension skills.” (Garibay, supra, 143 F.3d at
p. 538.)
       Garibay concluded that under the totality of the circumstances, the defendant’s
waiver was not knowing and intelligent based on the absence of a written waiver, the
failure to give the Miranda warnings in Spanish, the lack of a translator’s help, the need
for repeated explanations of his rights, and his lack of prior experience with the criminal
justice system. (Garibay, supra, 143 F.3d at pp. 538–539.)
       A similar result was reached in United States v. Short (6th Cir. 1986) 790 F.2d 464
(Short), where the defendant was arrested for aiding and abetting her husband’s sexual
abuse of their child. She gave an inculpatory statement after being advised of the
Miranda warnings in English. Short held there was a “serious question” whether the
defendant’s waiver was knowing and intelligent. (Id. at p. 469.) The defendant was from
West Germany and had lived in the United States for only three months. She could not
drive, did not have any friends aside from her husband, and spoke only broken English.
The defendant was not familiar with the American criminal justice system. A social
services officer had been present during the interrogation, and testified that she
questioned whether the defendant understood the implications of her answers, and
thought the defendant appeared ignorant and showed judgment limitations. At her first
court appearance, the court determined the defendant did not understand what was going
on, and appointed a German-language interpreter to assist her. (Id. at p. 469.)

              “The government agents concede that [the defendant’s] English was
       so poor that they took special precautions in explaining the Miranda
       warnings to her. In fact, that is the basic argument used to support their
       characterization of the confession as a voluntary one. This position is
       undermined, however, by the Magistrate’s view that [the defendant] would
       not be able to understand the proceedings against her without translation
       into German. We have only the agents’ opinion that [the defendant]
       understood what was happening. The language of the written statement is


                                             34
       obviously not [the defendant’s]. It is, at best, the agents’ interpretation of
       her halting English….” (Id. at p 469, italics in original, fn. omitted.)

              1. Valid Waivers and Voluntary Statements
       Even where a defendant has limited skills in English, however, he may knowingly,
intelligently, and voluntarily waive his Miranda rights, provided the totality of the
circumstances indicates that he understood those rights when he waived them. (People v.
Salcido (2008) 44 Cal.4th 93, 127–128 (Salcido); United States v. Amano (9th Cir. 2000)
229 F.3d 801, 804–805 (Amano).) A series of cases illustrate valid waivers in these
circumstances.
       In Salcido, supra, 44 Cal.4th 93, the defendant was arrested in Mexico, and the
police escorted him to California to face multiple murder charges. During the flight to
California, the investigating detective advised the defendant of the Miranda warnings in
English. The defendant waived his rights and gave an incriminating statement. On
appeal, the defendant relied on Garibay, and argued his Miranda waiver was invalid and
his statement was involuntary because “his asserted inability to communicate effectively
in English contributed to a ‘perception that the lawyer [provided for him by the
government] would be in the Sheriff’s employ and not necessarily aligned with
defendant’s best interests,’ and evidently the impression that there would be no benefit in
requesting or receiving the assistance of an attorney.” (Id. at p. 128.)
       Salcido rejected the defendant’s claim that his statements were involuntary or his
situation was similar to that addressed in Garibay:

              “In the present case, … the transcript of advisements, followup
       questions, and defendant’s responses establishes that Detective Edmonds
       inquired whether defendant wished to receive the advisements in English or
       in Spanish and whether he was more comfortable conversing in English or
       in Spanish. Spanish-speaking agents were present on the flight, with whom
       defendant could consult if there was something he did not understand. In
       addition, as explained in expert testimony, defendant had an above-average
       IQ. Unlike the defendant in Garibay, defendant was provided an ample
       opportunity to be advised in Spanish and to communicate in that language,
                                              35
       and had the innate intelligence to decide whether to avail himself of that
       opportunity.” (Salcido, supra, 44 Cal.4th at pp. 128–129.)
       In Bernard S., supra, 795 F.2d 749, a minor was taken into custody for an assault.
His native language was Apache. He was questioned by an FBI agent. The minor’s
mother and a police officer were present during the interview, and they both spoke
Apache. The agent advised the minor of the Miranda warnings in English by reading
from a standard form. The agent then explained each individual right to the minor and
his mother. After reading each right, the agent asked the minor if he understood his
rights, and he said yes. The minor signed a written waiver in English. The minor never
said he did not understand his rights. During the interview, the minor responded to the
agent’s questions in English. The minor asked his mother and the police officer “to
explain a few items into Apache, but these translations were made after the Miranda
rights were read and waived, and did not involve those rights” but were brief
clarifications, and “ ‘virtually the entire conversation was done in English ….’ ” (Id. at
p. 751 & fn. 1.)
       Bernard S. rejected the minor’s claim that his Miranda waiver was invalid because
he had a limited knowledge of English, and the Miranda warnings were not explained to
him in Apache. (Bernard S., supra, 795 F.2d at p. 752.)

               “It is clear from the record that [the minor] does have some
       difficulty with English. He testified that he neither reads nor writes
       English, he occasionally spoke Apache with his mother and [the police
       officer] during the questioning to clarify some items, and he was assisted in
       his testimony at trial by an interpreter. On the other hand, he admitted that
       he studied English through the seventh grade and that he answered [the
       agent’s] questions in English. [¶] Most importantly, after [the agent]
       explained each of his rights to him in English, [the minor] stated that he
       understood his rights. [The agent] testified that ‘I asked him if he
       understood [his rights], if he understood all of the wording, and he stated
       that he did. He didn’t have any questions. I also made sure that his mother
       understood what his rights were. And I explained to both of them and
       asked them if they understood. And they stated that they did.’ At no time
       did appellant indicate that he did not understand his rights. [¶] Despite the
                                             36
       language difficulties encountered by [the minor], the evidence seems to
       indicate that he understood his rights and voluntarily, knowingly, and
       intelligently waived them. [Citations.]” (Id. at p. 752, fns. omitted.)11
       In Campaneria v. Reid (2nd Cir. 1989) 891 F.2d 1014 (Campaneria), the
defendant was interviewed in a hospital’s intensive care unit after having surgery for stab
wounds. The officer questioned the defendant about whether he had murdered the man
who stabbed him. The court rejected the defendant’s argument that his Miranda waiver
was invalid because of his “poor grasp of English,” or that his statements were
involuntary and coerced because of the circumstances of the hospital interview. (Id. at
p. 1020.)

               “Even though his proficiency in the English language may have been
       limited, it did not prevent him from making a knowing and intelligent
       waiver of his constitutional rights. [The defendant’s] native tongue is
       Spanish. Nonetheless, the record, and in particular the transcript of the
       recorded interview, reveals that, although he spoke in broken English with
       an accent and occasionally lapsed into Spanish, his command of English
       was sufficient for him to have understood the Miranda warnings given to
       him. According to his medical records, he was alert and observant during
       the times that the warnings were given. On each occasion that he was
       advised of his rights, he indicated that he understood those rights.” (Ibid.,
       italics added, fn. omitted.)
       In United States v. Abou–Saada, (1st. Cir. 1986) 785 F.2d 1 (Abou-Saada), the
defendant was charged as part of an international narcotics conspiracy. He argued his
statements to government agents should have been suppressed because his English was
too poor, and his education, background, and intelligence were too limited for him to
understand the Miranda warnings, particularly since the government later provided him
with a translator. (Id. at p. 10.) The court rejected the defendant’s argument that the very
fact he was provided an interpreter showed an inadequate knowledge of the English

       11In reaching this holding, Bernard S. further held that a written Miranda waiver
was strong but not dispositive evidence of voluntariness, and only one factor to be
considered in determining whether there had been a valid waiver. (Bernard S., supra,
795 F.2d at p. 753, fn. 4.)
                                            37
language. The court instead looked to a number of circumstances showing the
defendant’s ability to understand and use the English language:

       “[The defendant] is undeniably a foreigner. And, he testified to a limited
       educational background having permanently left school at age 16. On the
       other hand, [defendant] has lived in the United States for 16 years. The
       DEA agents who initially questioned him said he could answer their
       questions perfectly well in English, to the point of describing the medical
       details of a complicated neck injury he had suffered. And, his interpreter
       said he would sometimes answer questions in English before they were
       translated. Additionally, the suppression hearing transcript offers
       considerable support for the district court’s conclusion that [defendant] was
       evasive and inconsistent. His claims, for example, that he understood
       nothing at all, not even the Arabic translations of the Miranda warnings
       (because of the interpreter’s ‘Egyptian accent’) might reasonably be taken
       as showing the opposite….” (Id. at pp. 10–11.)
       In Amano, supra, 229 F.3d 801, the defendant, a Japanese national, was arrested in
Arizona as part of a counterfeiting investigation. An officer advised the defendant of the
Miranda warnings in English. The defendant spoke in English with a Japanese accent,
and said he understood his rights. The defendant answered the officer’s questions, and
said he was from Japan. The defendant was subsequently interviewed by another officer,
who again advised him of the Miranda warnings in English. The officer also presented
the defendant with a printed waiver form in English. The defendant signed the waiver
form, answered additional questions in English, and also signed an English-language
form which authorized a search of his apartment. (Id. at pp. 802–803.) On appeal, the
defendant argued his waivers were involuntary because he was advised of the Miranda
warnings in English, his native language was Japanese, he had limited English skills, he
did not have the assistance of an interpreter, and he was not informed of his right to
contact the Japanese consulate. (Id. at p. 805.)
       Amano held the defendant’s waivers were voluntary because he had “sufficient
skills in English to understand his rights, to waive them, and to make a statement against


                                             38
his interest.” (Amano, supra, 229 F.3d at p. 805.) The court cited the testimony of the
interviewing officers, that defendant appeared “to understand and converse comfortably
in English,” and on the discovery of “a variety of English-language materials in
Defendant’s home.” (Ibid.) “Defendant’s understanding of English obviated the need for
an advice of rights in Japanese or for an interpreter,” and his previous lack of contact
with the criminal justice system, and his lack of contact with the Japanese consulate, did
not render his waiver involuntary. (Ibid.)
        In Cruz, supra, 44 Cal.4th 636, the defendant was advised of the Miranda
warnings through a Spanish interpreter. When asked if he understood his rights,
defendant replied in Spanish, “ ‘mas o menos,’ which means ‘more or less.’ ” (Id. at
p. 666.) The defendant cited this response and argued his subsequent waiver was not
knowing and intelligent, because he did not understand his rights even though the
Miranda warnings had been translated. Cruz rejected the argument because after the
defendant made this statement, the officer again advised the defendant of the Miranda
warnings through the interpreter, separately explained each line in “less ‘formal’ terms,”
and the defendant acknowledged he understood and waived his rights. (Id. at pp. 667–
668.)
        H. Analysis
        After listening to the entire audio-recording of Officer Vargas’s interview with
defendant, we find that defendant’s Miranda waiver was knowing and intelligent, and his
statements were not involuntary or obtained in violation of due process. When Vargas
initially advised defendant of the entirety of the Miranda warnings in English, and asked
if he understood, defendant responded in Spanish. Vargas testified, without
contradiction, that defendant’s response meant “more or less.” Defendant said his first
language was Spanish and he did not want to answer in English. Vargas asked how long
he had spoken English, and defendant confirmed he knew “most of basic English.”

                                             39
Vargas said he would continue in English, to let him know if he did not understand
anything and, if so, “I can get somebody that speaks Spanish to explain it in Spanish if
you need it.” Defendant again said he felt more comfortable in Spanish. Vargas asked
him to give it a try and if he needed a Spanish interpreter, he would call the Spanish
officer on duty to help out, and defendant agreed.
       With that, Officer Vargas again advised defendant of the Miranda warnings, but
this time he read and explained each right individually – the right to remain silent meant
he had the right not to talk to Vargas; and anything they talked about would be used in
court later on. Vargas explained he had the right to a lawyer, asked defendant if he knew
what a lawyer was, and defendant said that was a “defender.” Vargas explained that if he
did not have any money for a lawyer, one would be given to him and he did not have to
worry about paying any bills. Vargas asked defendant if he understood his rights,
defendant said he understood, and the interview began.
       This interview sequence is somewhat similar to the situation in Cruz, where the
defendant was advised of the Miranda warnings in Spanish, and said he understood
“ ‘more or less.’ ” The question in Cruz was not whether a translator should have been
used, but whether that defendant understood the legal impact of the Miranda warnings.
Cruz held the defendant’s waiver was knowing and intelligent because the officer
explained each right, line by line, and the defendant said he understood each advisement.
(Cruz, supra, 44 Cal.4th at pp. 667–668.) In this case, Officer Vargas spoke to defendant
in English but also advised him of each individual right and gave examples, in order to
make sure that defendant understood his rights. After each explanation, defendant said
he understood.
       Defendant argues that his waiver was not knowing and intelligent since Officer
Vargas spoke to him in English and failed to provide a Spanish translator. As
demonstrated by the cases above, however, a defendant with limited skills in English may

                                            40
still have the ability to knowingly, intelligently, and voluntarily waive his Miranda rights,
provided the totality of the circumstances indicates that he understood those rights when
he waived them. (Salcido, supra, 44 Cal.4th at pp. 127–128; Amano, supra, 229 F.3d at
pp. 804–805.)
       In contrast to the situations addressed in Garibay and Short, the recording refutes
any assertion that Officer Vargas simply assumed defendant was sufficiently proficient to
understand the English-language rendition of his constitutional rights. Vargas advised
defendant that he would call in an officer to act as a Spanish-language translator if he felt
he still needed one, and never said that calling in a translator would be difficult or take
too much time. Also in contrast to Short, defendant had not just arrived in the country
and lived in an isolated situation. He had lived in the United States for many years, he
had worked in businesses which required interaction with the general public, and he had
family and friends in the community.
       As in Bernard S. and Salcido, Officer Vargas carefully explained and gave
examples to illustrate the meaning of each constitutional right, defendant said he
understood his rights, and he never again asked for a translator. The rest of the one-hour
interview was conducted almost entirely in English. As in Campaneria and Abou-Saada,
the recording of the entire interview showed that defendant did not simply give responses
that were expected of him. Defendant had a good command of the English language and
his answers were responsive to Vargas’s questions. Indeed, defendant’s lengthy narrative
answers showed his understanding of English, and his realization of the seriousness of the
allegations. He repeatedly denied that he touched Sonia’s vagina or private area.
Defendant showed he understood the meaning and importance of DNA evidence. Upon
being confronted with possible tests of Sonia’s clothing, defendant conceded it was
possible his DNA might be on her underwear and he might have touched her vagina, but
claimed he did not pay attention while he gave her the massage, and then reverted back to

                                             41
his insistence that he did not touch her private area. These exchanges again showed his
command of the English language, and that he understood the seriousness and
significance of these questions and answers.
         Defendant’s own statements to Officer Vargas undermine his claim that he did not
understand the Miranda advisement, his waiver of rights, or the significance of Vargas’s
questions and his answers. Toward the end of the interview, Vargas asked defendant if
he had explained himself well. Defendant said yes and that he had understood Vargas,
but he didn’t know the “real situation.” Vargas said the “real situation” was that
defendant had inappropriately touched a minor female. Defendant replied, “I understand
that.”
         Defendant asserts his waiver was not knowing and intelligent because he did not
sign a written waiver, and there is no evidence that he had prior experience with the
criminal justice system. While defendant did not sign a written waiver, Bernard S.
explained that such a fact was strong but not dispositive evidence of voluntariness, and
the totality of the circumstances must be considered. Similarly, Amano held that a
defendant’s previous lack of contact with the justice system did not render a Miranda
waiver involuntary if there was other evidence to show the defendant had sufficient skills
to understand and waive his rights, and make a statement. (Amano, supra, 229 F.3d at
p. 805.)
         Defendant claims his statements should have been excluded because he never gave
an express waiver. As we have explained, however, a valid waiver may be express or
implied. Having acknowledged his understanding of his rights, defendant’s clear
willingness to answer Officer Vargas’s questions constitutes such an implied waiver.
(Cruz, supra, 44 Cal.4th at pp. 667–668.)
         We thus conclude that the court properly denied defendant’s motion to exclude his
pretrial statements to Officer Vargas. The totality of the circumstances show that

                                             42
defendant knowingly and intelligently waived his Fifth Amendment rights, and his
statements were voluntary and not obtained in violation of due process.
II.    Substantial Evidence for Count I
       Defendant contends his conviction in count I, sexual penetration of a minor over
the age of 14 years old by means of force in violation of section 289, must be reversed
because there is insufficient evidence to establish the element of penetration, particularly
that his hand or finger penetrated Sonia’s vagina. Defendant points to Sonia’s conflicting
answers at trial, and her prior statements to Officer Vargas, in support of his argument
that there was insufficient evidence of penetration. As we will explain, however, section
289 is violated by “the penetration, however slight, of the genital … opening” of the
victim (§ 289, subd. (k)(1)), and the jury’s verdict is supported by substantial evidence.
       A. Substantial evidence
       “In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.) “The standard of appellate review is the same in cases in which the
People rely primarily on circumstantial evidence. [Citation.]” (People v. Bean (1988) 46
Cal.3d 919, 932–933; People v. Stanley (1995) 10 Cal.4th 764, 792–793.)
       “Conflicts and even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary



                                              43
conflicts; we look for substantial evidence. [Citation.]” (People v. Maury, supra, 30
Cal.4th at p. 403.)
       B. Sexual Penetration
       Defendant was convicted in count I of violating section 289, subdivision (a)(1)(C),
which states:

              “Any person who commits an act of sexual penetration upon a minor
       who is 14 years of age or older, when the act is accomplished against the
       victim's will by means of force, violence, duress, menace, or fear of
       immediate and unlawful bodily injury on the victim or another person, shall
       be punished by imprisonment in the state prison for 6, 8, or 10 years.”
       Section 289, subdivision (k)(1) further defines the offense and states:

               “Sexual penetration’ is the act of causing the penetration, however
       slight, of the genital or anal opening of any person or causing another
       person to so penetrate the defendant’s or another person’s genital or anal
       opening for the purpose of sexual arousal, gratification, or abuse by any
       foreign object, substance, instrument, or device, or by any unknown
       object.” (Italics added.)
       A finger is a foreign object within the meaning of section 289. (People v. Keeney
(1994) 24 Cal.App.4th 886, 889.)
       The “penetration” required to violate section 289 is statutorily defined as “genital”
penetration, not “vaginal” penetration. (People v. Quintana (2001) 89 Cal.App.4th 1362,
1367 (Quintana); People v. Dunn (2012) 205 Cal.App.4th 1086, 1098; People v. Karsai
(1982) 131 Cal.App.3d 224, 232, overruled on other grounds in People v. Jones (1988)
46 Cal.3d 585, 600, fn. 8.) “A ‘genital’ opening is not synonymous with a ‘vaginal’
opening ….” (Quintana, supra, at p. 1367.) “The vagina is only one part of the female
genitalia …. Thus, ‘genital’ opening does not necessarily mean ‘vaginal’ opening.”
(Ibid.) Accordingly, any contact within the external genitalia is sufficient, and vaginal
penetration is not necessary. (Id. at pp. 1366, 1371; People v. Karsai, supra, 131



                                             44
Cal.App.3d at p. 232.) Sexual penetration may be proved by circumstantial evidence.
(People v. Stevenson (1969) 275 Cal.App.2d 645, 650.)
       The jury in this case was correctly instructed that sexual penetration for count I
meant “penetration, however slight, of the genital or anal opening of the other person for
the purpose of sexual abuse, arousal, or gratification”; penetration for sexual abuse meant
“penetration for the purpose of causing pain, injury, or discomfort”; and an “unknown
object included any part of the body.”
       C. Analysis
       Defendant asserts there is insufficient evidence of penetration of the victim’s
vagina, given her inconsistent statements about how and where he touched her body.
However, a violation of section 289 does not require penetration of the victim’s vagina,
but of the victim’s genital area. As set forth in the factual statement above, Sonia
testified defendant used his hand and touched her in the same area of her genitalia. The
prosecutor showed Sonia the diagram of the female body, Sonia circled an area and said
it was the vagina, and she testified that defendant touched her vagina with his hand.
       On redirect examination, the prosecutor asked Sonia if defendant touched her in
the vagina, and Sonia said yes.
              “Q.    Now to clarify, did the defendant touch you in the vagina?
              “A.    Yes.” (Italics added.)
       As explained above, any contact within the external genitalia is sufficient, and
vaginal penetration is not necessary. (Quintana, supra, 89 Cal.App.4th at pp. 1366,
1371.) Sonia’s testimony that defendant touched her “in the vagina” constitutes
substantial evidence of contact within the external genitalia, and that he penetrated her
“genital area” as required by section 289.
       Defendant asserts there is insufficient evidence of penetration based on Sonia’s
conflicting trial testimony and her responses on cross-examination, particularly as to what

                                              45
she told Officer Vargas during her pretrial interview. Defense counsel repeatedly
attempted to impeach Sonia with her prior statements to Vargas about where defendant
touched her. Sonia admitted that Vargas asked her if defendant touched her vagina and
she said no. Sonia also testified she did not remember what she told Vargas, she did not
remember whether defendant put his finger inside her “private part,” but she did not lie to
Vargas. On redirect examination, however, Sonia testified defendant touched her “in the
vagina,” as set forth above. Immediately after this testimony, defense counsel used
recross-examination to ask Sonia to explain that answer.

              “Q. Sonia, the prosecutor just asked you if [defendant] touched
       you in the vagina and a little while ago you said you didn’t remember and I
       showed you documents and you still didn’t remember saying no and right
       now you just said yes he did. Is there something that happened right now
       between the time I asked you and the time the prosecutor asked you that
       triggered your memory?

              “A.    I don’t get your question because you like you talk really fast.

              “Q.    I’m sorry?

              “A.    I don’t get your question.

              “Q.    You didn’t understand my question?

              “A.    No.

              “Q. And so when [the prosecutor] said ‘touch you in the vagina’
       you said yes without hesitation?

              “A.    Yeah.

             “Q. Did you just say that because [the prosecutor] asked it that
       way or because [defendant] actually … [¶] touched you inside your
       vagina?

              “A.    He did touch me.

              “Q.    Oh, he did?

              “A.    Yeah, but you were asking me another question.
                                            46
             “Q. Okay. But when the officer asked you you said he didn’t, do
       you remember that?

              “A.      No.” (Italics added.)
       The jury was thus aware that Sonia gave inconsistent statements to Officer Vargas
at trial, but Sonia explained these inconsistencies and ultimately testified defendant
touched her “in the vagina.”
       Defendant’s reliance on inconsistencies in Sonia’s trial testimony cannot be the
basis for finding that his conviction in count I is not supported by substantial evidence.
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility
issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless
the testimony is physically impossible or inherently improbable, testimony of a single
witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34
Cal.4th 1149, 1181.)
       The “inherently improbable” standard for rejecting testimony on appeal “means
that the challenged evidence is ‘unbelievable per se,’ such that ‘the things testified to
would not seem possible.’ [Citation.] The determination of inherent improbability must
be made without resort to inference or deduction, and thus cannot be established by
comparing the challenged testimony to other evidence in the case.” (People v. Ennis
(2010) 190 Cal.App.4th 721, 725.)
       Defense counsel impeached Sonia’s testimony with her prior statements to Officer
Vargas, and there was nothing in these exchanges that rendered her testimony inherently
improbable as to whether defendant penetrated her “genital area” with his hand, as
required by section 289. Defendant’s challenge to the evidence in support of count I is
based “entirely on comparisons, contradictions and inferences,” and “amounts to nothing
more than an attack on witness credibility, and cannot be the basis for a reversal of the
judgment on appeal.” (People v. Ennis, supra, 190 Cal.App.4th at p. 725.)

                                               47
III.   Failure to Instruct on Attempt as a Lesser Included Offense for Count I
       Defendant next contends the court committed prejudicial error when it failed to
instruct the jury that attempt was a lesser included offense of count I, sexual penetration
of a minor by means of force. Defendant argues Sonia’s inconsistent statements
supported an attempt instruction, and the court had a sua sponte duty to give the
instruction despite defense counsel’s statement that attempt was not a lesser included
offense of count I.
       A. Lesser Included Offenses
       “A trial court must instruct the jury sua sponte on a lesser included offense only if
there is substantial evidence, ‘ “that is, evidence that a reasonable jury could find
persuasive” ’ [citation], which, if accepted, ‘ “would absolve [the] defendant from guilt of
the greater offense” [citation] but not the lesser’ [citation]. [Citations.]” (People v. Cole
(2004) 33 Cal.4th 1158, 1218, italics in original.) The duty exists even when the lesser
included offense is inconsistent with the defendant’s own theory of the case and the
defendant objects to the instruction. (People v. Breverman (1998) 19 Cal.4th 142, 154-
155 (Breverman); People v. Valdez (2004) 32 Cal.4th 73, 115.)
       “[T]he existence of ‘any evidence, no matter how weak’ will not justify
instructions on a lesser included offense, but such instructions are required whenever
evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to
merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is
‘ “evidence from which a jury composed of reasonable [persons] could … conclude[]” ’
that the lesser offense, but not the greater, was committed. [Citations.] [¶] In deciding
whether there is substantial evidence of a lesser offense, courts should not evaluate the
credibility of witnesses, a task for the jury. [Citations.]” (Breverman, supra, 19 Cal.4th
at p. 162, italics in original.)



                                             48
       “Moreover, as we have noted, the sua sponte duty to instruct on lesser included
offenses, unlike the duty to instruct on mere defenses, arises even against the defendant’s
wishes, and regardless of the trial theories or tactics the defendant has actually pursued.
Hence, substantial evidence to support instructions on a lesser included offense may exist
even in the face of inconsistencies presented by the defense itself.” (Breverman, supra,
19 Cal.4th at pp. 162–163, fn. omitted.)
       “We apply the independent or de novo standard of review to the failure by the trial
court to instruct on an assertedly lesser included offense. [Citation.]” (People v. Cole,
supra, 33 Cal.4th at p. 1218.)
       “[T]he failure to instruct sua sponte on a lesser included offense in a noncapital
case is, at most, an error of California law alone, and is thus subject only to state
standards of reversibility. [S]uch misdirection of the jury is not subject to reversal unless
an examination of the entire record establishes a reasonable probability that the error
affected the outcome. [Citations.]” (Breverman, supra, 19 Cal.4th at p. 165; People v.
Watson (1956) 46 Cal.2d 818, 836.)
       B. Instructional Conference
       The court initially addressed instructions during a break in defendant’s testimony.
The court noted the possible lesser included offenses for count I, sexual penetration of a
minor by means of force, were attempt, simple assault, and battery. The court believed
that for count II, sexual battery, the lesser offenses were attempt, battery, assault, and
misdemeanor sexual battery. The court asked defense counsel if he wanted to request
any lesser instructions. Counsel replied that he wanted to wait until defendant completed
his testimony and he rested the case.
       The court said that based on the evidence to that point, it did not appear that
attempt would be a lesser included offense for either counts I or II. The court stated that



                                              49
it also did not appear that simple assault or battery would be lesser offenses for count II,
but that misdemeanor sexual battery would be included.
       After the parties rested, the court returned to the instructions on lesser included
offenses and asked defense counsel for his position. Defense counsel said that as to count
I, sexual penetration, there was sufficient evidence to give lesser included instructions for
simple assault and battery.Counsel continued:
              “[Defense counsel]:          … The attempt, that I don’t know still the same
       attempt, I don’t see it maybe the Court sees it.
              “The Court:                  The intent is not the same.
              “[Defense counsel]:          Right.

              “THE COURT:                  …. I don’t see an attempt as to any of the
       offenses.

              “[Defense counsel]:          Right, and that’s my position.

              “THE COURT;                   And you know what, let’s just see if
       maybe we can shorten it up a little bit. There’s really no attempt to any of
       them as far as I’m concerned. A simple assault and simple battery as to
       Count 1 I have to make a determination as to whether or not there’s enough
       evidence to show that the jury could find those as opposed to the first count
       and I believe that that’s a potential possibility, so I would probably give the
       assault … and the battery… The lesser includeds as to Count 1 would be
       [CALCRIM Nos.] 915, 960…. As to the [section] 243.4(a), that’s the
       felony, [section] 243.4(e) … is a lesser included and the assault and the
       battery…. [¶] So that’s the Court’s intention, do you want to argue with
       me…?”

               “[Defense counsel]:           No. As to Count 1 I would agree. Count
       2, just to clarify, is the simple assault and battery?

              “THE COURT:                  Correct…

              “[Defense counsel]:          I have no objection.” (Italics added.)
       The prosecutor objected to giving assault and battery as lesser included offenses
for counts I and II because assault was “really an attempted battery,” and there was

                                             50
sufficient evidence to find counts I and II had been committed. The court disagreed and
said it would give assault and battery as lesser included offenses for both felony charges.
       The court instructed the jury that as to count I, sexual penetration of a minor by
force, and count II, felony sexual battery, the lesser included offenses were simple assault
(CALCRIM No. 915) and simple battery (CALCRIM No. 960); and misdemeanor sexual
battery (CALCRIM No. 938) was also a lesser included offense for count II.
       C. Attempted Sexual Penetration
       Defendant argues the court had a sua sponte duty to instruct on attempt as a lesser
included offense of count I, sexual penetration of a minor by force.
       “As a general matter, an attempt to commit a crime is a lesser included offense of
the completed crime.” (People v. Ngo (2014) 225 Cal.App.4th 126, 156 (Ngo).)
“[W]here an attempt to commit an offense may be distinguished from the substantive
offense solely by the failure to complete the actus reus, the elements of the attempted
offense are all included in the greater offense.” (Ibid.)
       Under the law of attempt, in many instances “when the completed offense is a
general intent crime, an attempt to commit that offense does not meet the definition of a
lesser included offense under the elements test because the attempted offense includes a
specific intent element not included in the complete offense. [Citations.]” (Ngo, supra,
225 Cal.App.4th at pp. 156–157, fn. omitted.)
       As relevant to this case, sexual penetration of a minor in violation of section 289,
as further defined by section 289, subdivision (k), is a specific intent crime. (People v.
McCoy (2013) 215 Cal.App.4th 1510, 1538–1538 (McCoy); Ngo, supra, 225 Cal.App.4th
at p. 157.)12 “[T]he crime of unlawful sexual penetration requires the specific intent to


       12The court correctly instructed the jury in this case that the charged offense of
sexual penetration of a minor by force was a specific intent crime. (McCoy, supra, 215
Cal.App.4th at p. 1541; CALCRIM No. 1045.)
                                             51
gain sexual arousal or gratification or to inflict abuse on the victim. However, as long as
the act of penetration is done with this specific intent, and that act is ‘accomplished
against the victim’s will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person’[citation], the
crime has been committed. This is so regardless of whether the force, violence, duress,
menace, or fear is also used with the intent to gain sexual arousal or gratification or to
inflict abuse on the victim.” (McCoy, supra, 215 Cal.App.4th at p. 1538.)
        Thus, both attempt and the completed offense of sexual penetration of a minor by
force are specific intent crimes, and attempt is a lesser included offense of sexual
penetration of a minor as charged in count I. (Ngo, supra, 225 Cal.App.4th at pp. 157–
158.)
        D. Ngo
        In Ngo, supra, 225 Cal.App.4th 126, the court addressed whether attempt
instructions should have been given when the charged offense was sexual penetration of a
child aged 10 years old or younger. The defendant argued the court had a sua sponte duty
to instruct on attempt as a lesser included offense, and committed prejudicial error in
failing to do so. The People agreed attempt was a lesser included offense of the
completed crime, but argued the court did not have a sua sponte duty to give the
instruction because the crime of attempt was not supported by substantial evidence. (Id.
at pp. 130, 148, 155.)
        Ngo held that attempt was a lesser included offense of sexual penetration of a
minor. (Ngo, supra, 225 Cal.App.4th at pp. 157–158.) Ngo also held there was
substantial evidence to support the instruction based on the trial testimony in the case:

        “In her initial statements to police, [the seven-year-old victim] was
        consistent in stating that defendant touched her …, but she was equivocal
        as to whether defendant actually penetrated her. In Mother’s statements to
        police and in her trial testimony, she stated that she interrupted defendant’s

                                              52
       touching of [the victim] when she walked into the living room. Mother
       testified that she saw defendant’s hand in [the victim’s] pants, but she did
       not see whether defendant penetrated [the victim]. Mother told police she
       did not believe defendant had penetrated [the victim]. Defendant admitted
       touching [the victim], as corroborated by the scratch on her stomach, but he
       consistently denied that he penetrated her. This evidence is consistent with
       the possibility that defendant attempted to penetrate [the victim], but that
       Mother interrupted the attempt when she walked into the room. We find
       this constitutes ‘ “ ‘evidence that a reasonable jury could find
       persuasive’ ” ’ as to attempted sexual penetration. [Citation.] Therefore,
       the trial court had a sua sponte duty to instruct the jury accordingly, and it
       erred in failing to do so.” (Id. at p. 157, italics added, fn. omitted.)
       Ngo further held the failure to instruct on attempt as a lesser included offense was
prejudicial because of weak trial evidence of penetration, the lack of any physical
evidence, the mother’s testimony that she did not believe the child had been penetrated,
and the victim’s “contradictory” statements “as to whether the defendant penetrated her.”
(Ngo, supra, 225 Cal.App.4th at p. 159) In her initial interview with the police, the
victim said the defendant touched various places on her body, and initially failed to say
that he penetrated her vaginal area. When an officer demonstrated the area that could
have been touched, the victim said it happened and the defendant penetrated her, but the
record failed to show whether the victim was talking about the charged offense or another
incident that happened the prior year. The interviewing officers failed to obtain a clear
statement from the victim as to whether the defendant penetrated her vaginal area. (Id. at
pp. 159–160.)
       Ngo concluded it was “reasonably probable the jury, had it been instructed on
attempt, would have convicted defendant of attempted sexual penetration in lieu of the
completed offense,” and reversed his conviction. (Ngo, supra, 225 Cal.App.4th at
p. 161.)13

       13Ngo noted that on remand, the prosecutor had the option “of accepting a
conviction for the attempt offense,” but that possibility was affected by the trial court’s
erroneous instruction that sexual penetration on a minor was a general intent crime.
                                             53
       E. Analysis
       It is undisputed that the court has a sua sponte duty to instruct on a lesser included
offense if supported by substantial evidence, even if the lesser offense is inconsistent with
defendant’s theory of the case and defendant objects to the instruction. It is also
undisputed that attempt is a lesser included offense of count I, sexual penetration of a
minor in violation of section 289. Thus, defendant has not forfeited review of this issue
even though he agreed with the court’s determination that attempt was not a lesser
included offense of count I, and he did not request an attempt instruction.
       In contrast to Ngo, however, there was no substantial evidence from which a
reasonable jury could have found that defendant attempted to penetrate Sonia’s genital
area but he was prevented from completing the offense. Sonia’s testimony constitutes
substantial evidence of contact within the external genitalia, and that he penetrated her
“genital area” as required by section 289. (Quintana, supra, 89 Cal.App.4th at pp. 1366,
1371.) Sonia testified she tried to flick his hand away and told him to stop, but defendant
did not move his hand away from her body and did not stop. There is no evidence that
defendant was interrupted or prevented from penetrating her genital area. Sonia testified
he kept touching her until he finally stopped and left her bedroom.
       In contrast, defendant testified at trial that he only gave Sonia a massage, and he
never touched Sonia in a sexual way and never touched her vaginal area. Officer Vargas
testified that during the pretrial interview, defendant said it was possible that he touched
her vagina while touching her upper thigh. Vargas asked defendant if he touched Sonia
between her legs. Defendant said yes. Vargas asked defendant if was possible that his
DNA was on her panties. Defendant said it was a possibility.


(Ngo, supra, 225 Cal.App.4th at p. 161, fn. 21.) That situation is not present in this case
because the jury herein was properly instructed that the violation of section 289, as
charged in count I, was a specific intent crime.

                                             54
       Defendant asserts that as in Ngo, Sonia’s inconsistent statements about whether
defendant touched her vagina would have supported an attempt instruction. In Ngo, the
victim gave equivocal statements to the police about whether the defendant penetrated
her. However, the victim in Ngo never clarified whether she was referring to the charged
incident or an act that happened a year earlier. More importantly, Ngo found the
evidence showed the child’s mother entered the room and likely interrupted the defendant
as he attempted to penetrate the victim. Ngo concluded that such evidence would have
supported an attempt instruction. (Ngo, supra, 225 Cal.App.4th at p. 157.)
       In this case, however, the jury was presented with two opposing versions of
events – the prosecution’s version, based Sonia’s testimony that defendant touched her
vagina and penetrated her genital area, and defendant’s version, that he gave Sonia a
massage, and it was possible he touched her vaginal area. Even though Sonia gave
inconsistent statements, there was still no evidence for the jury to have reasonably
concluded that defendant attempted, but failed to complete, penetration of her genital area
with the requisite sexual intent. If the jury had reached that conclusion, it could have
found defendant guilty of one of the lesser included offenses which were given, felony
assault and battery, and misdemeanor sexual battery.
IV.    Motion for New Trial; Ineffective Assistance
       Defendant argues the court should have granted his motion for new trial based on
trial counsel’s alleged ineffective assistance, because counsel failed to cross-examine
Sonia about her pretrial statement to Officer Vargas, that she said defendant never put his
finger inside her vagina. Defendant argues trial counsel’s failure to introduce this
impeachment evidence was prejudicial error, and his new trial motion should have been
granted.
       We will review the procedural history of defendant’s new trial motion and address
the merits of defendant’s underlying claim of ineffective assistance.

                                             55
       A. Defendant’s New Trial Motion
       Defendant was represented by retained counsel, Albert Garcia, during trial. As we
have explained in the factual statement above, Officer Vargas conducted a recorded
interview with Sonia. At trial, neither the prosecutor nor defense counsel sought to
introduce the recording or transcript of the Vargas/Sonia interview before the jury. As
we have also set forth above, Mr. Garcia used the transcript of the interview to cross-
examine Sonia during trial.
       After defendant was convicted, he discharged Mr. Garcia and retained attorney
Jim Elia. Thereafter, Mr. Elia filed a motion for new trial, which raised numerous issues,
including several allegations that trial counsel was prejudicially ineffective.14
       As relevant to this appeal, defendant argued Mr. Garcia was ineffective because he
failed to impeach Sonia with her pretrial statement to Officer Vargas about whether
defendant penetrated her vagina, and he failed to cross-examine Vargas about whether
Sonia said defendant did not penetrate her vagina.
       In support of this argument, defendant’s new trial motion quoted the following
three excerpts from the transcript of the Vargas/Sonia interview, and argued these
sections showed Sonia said defendant did not penetrate her vagina and Mr. Garcia should
have introduced these into evidence.

               “Vargas:             Did his fingers ever go inside of the private
       part?



       14 Defendant’s new trial motion also asserted that his pretrial statement to Officer
Vargas should have been excluded; there was insufficient evidence of penetration to
support count I; and trial counsel was ineffective because he was not prepared to argue
the Miranda motion, he should have objected to the transcript of defendant’s interview
with Vargas as incomplete, and he failed to call witnesses to testify about defendant’s
limited ability to speak English. The court denied the entirety of the motion. On appeal,
defendant only challenges the court’s denial of the motion as to counsel’s failure to
impeach Sonia with her prior statements to Vargas.
                                             56
         “[Sonia]:          [M]m.nnn.

       “Vargas:             It never did? Did it ever, did it touch any of this
area right here?

        “[Sonia]:          Um, I don’t know how, just like, he was just
like, going like that and…

         “Vargas:           ‘Kay. Okay, so, he was just goin’ like this,
right?

         “[Sonia]:          Mm.hmm.

       “Vargas:              [D]id he ever turn his finger? Did he ever use
his fingers for anything else (inaudible) so, he was just rubbing the outside
of your vagina, or private part? Is that what it’s called?

         “[Sonia]:          Yeah. (CD Transcript P.45)

       “Vargas:           Kay, you know in this area right here there’s
um, its an opening. Did you know that? This right here is an opening?

         “[Sonia]:          Oh, yeah…

       “Vargas:           Kay, you know in this area right here there’s
um, its an opening. Did you know that? This right here is an opening?

         “[Sonia]:          Oh, yeah…

       “Vargas:             Kay, at any point did his hands ever go inside
the opening?

         “[Sonia]:          Yeah…

         “Vargas:           It did…

         “[Sonia]:          But, yeah but…

     “Vargas:              [A]nd when I mean opening do you know, you
know what the part I’m talkin about?

         “[Sonia]:          [Y]eah, that. Like, right here.

       “Vargas:             [Y]ea did he ever, did his hands or fingers ever
go inside here? It never did?

                                      57
       “[Sonia]:            No… (CD T Victim P 75)

       “Vargas:             It was always on the outside?

       “[Sonia]:            [Y]eah. (CDT Victim P 76)” (Underline in original.)
       Defendant’s motion stated that after this exchange, Officer Vargas continued this
line of questioning and Sonia “change[d] her story in an apparent attempt to tell the
officer what may have been the truth or what she believed at this point the officer wanted
to hear.”
       Defendant’s motion thus concluded that trial counsel was prejudicially ineffective
for failing to introduce the above-quoted excerpts from the Vargas/Sonia interview
because they “clearly show[] the evidence of penetration and force was lacking when
judged by a reasonable doubt standard.” The motion states the “CD record” of the
Vargas/Sonia interview was “never read or introduced to the jury.”
       B. The People’s Opposition
       The People filed opposition to defendant’s new trial motion, and argued that trial
counsel was not ineffective because he extensively impeached Sonia’s testimony with her
prior statements to Officer Vargas. The People stated that counsel had the entirety of
Sonia’s recorded interview with Vargas, and counsel’s tactical decisions on how to
conduct cross-examination were not ineffective.
       C. Hearing on the New Trial Motion
       On April 10, 2014, the court heard argument on defendant’s new trial motion. The
court stated it had reviewed the entirety of the file, along with the motion and
opposition.15 Mr. Elia argued trial counsel was ineffective because he should have


       15  At the hearing on defendant’s motion for new trial, Mr. Elia advised the trial
court that he attempted to file a copy of the transcript of Officer Vargas’s interview with
Sonia as part of his new trial motion, but the superior court clerk’s office refused to
accept it for filing because he failed to present four conformed copies. Mr. Elia stated
that he instead personally delivered that transcript to the trial court’s clerk.

                                             58
impeached Sonia with her prior inconsistent statements to Officer Vargas, that defendant
did not penetrate her vagina. Mr. Elia argued trial counsel should have introduced the
entirety of the Vargas/Sonia transcript into evidence, there was no tactical reason for
failing to impeach Sonia with her prior statements, and defense counsel failed to
challenge her testimony about penetration.
       The prosecutor replied that trial counsel vigorously cross-examined Sonia about
all aspects of the incident and impeached her with her prior statements to Officer Vargas.
       D. The Court’s Denial of the New Trial Motion
       The court denied defendant’s motion for new trial and said it was “not in
agreement with the defense counsel’s position with respect to its interpretation of the
evidence that was presented and/or the facts as they occurred at the trial, but nonetheless
the Court’s position is to deny each and every request made with respect” to the motion.
       E. New Trial/Ineffective Assistance
       To prevail on a claim of ineffective assistance on a motion for new trial, the
defendant “must show both that his counsel’s performance was deficient when measured


       At oral argument, we advised the parties that the transcript of the interview
between Officer Vargas and Sonia is not part of the appellate record. However, the
complete audio recording of Vargas’s interview with Sonia is before this court. It is on a
CD that also contains the recording of Vargas’s interview with defendant. The front of
that CD is clearly marked and states that it contains both interviews. The CD was never
introduced before the jury. At the beginning of defendant’s trial, however, the parties
stipulated that the superior court could lodge that CD into the trial record for purposes of
review, and it was so lodged. This court augmented the appellate record to include that
CD, and it is properly before this court.
       Also at oral argument, the parties stipulated that this court may listen to the
recording of Officer Vargas’s interview with Sonia that is contained on the CD that was
before the superior court, lodged in the trial record, and is part of the appellate record – in
order to address defendant’s appellate contentions as to whether his new trial motion
should have been granted based on defense counsel’s alleged ineffectiveness for failing to
use her statements on that recording to impeach her trial testimony. As we will explain,
this court has listened to the entire recording.
                                              59
against the standard of a reasonably competent attorney and that counsel’s deficient
performance resulted in prejudice to defendant in the sense that it ‘so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.’ [Citations.]” (People v. Andrade (2000) 79 Cal.App.4th 651,
659–660.)
       “In general, reviewing courts defer to trial counsel’s tactical decisions in assessing
a claim of ineffective assistance, and the burden rests on the defendant to show that
counsel’s conduct falls outside the wide range of competent representation. [Citations.]
In order to prevail on such a claim on direct appeal, the record must affirmatively
disclose the lack of a rational tactical purpose for the challenged act or omission.
[Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 349.) “As to whether certain
witnesses should have been more rigorously cross-examined, such matters are normally
left to counsel’s discretion and rarely implicate inadequacy of representation.
[Citations.]” (People v. Cox (1991) 53 Cal.3d 618, 662, fn. omitted, disapproved on
other grounds in People v. Doolin (2009) 45 Cal.4th 390.)
       Defendant asserts counsel was ineffective because he failed to cross-examine and
impeach Sonia with her prior inconsistent statements to Officer Vargas, particularly
Sonia’s statement quoted from the Vargas/Sonia interview transcript that defendant did
not penetrate her vagina.
       Defendant’s claim of ineffective assistance is refuted by the entirety of Sonia’s
trial testimony which shows just the contrary – counsel extensively cross-examined Sonia
with her prior statements, including whether she told Vargas that defendant never
penetrated her vagina. The following exchange occurred at trial during cross-
examination:




                                             60
              “[Defense counsel] … And do you remember if [Vargas] asked you
      if [defendant] put his finger inside?

              “A.   Yeah.

           “Q. We’ll call it ‘vagina,’ the word they use here; do you
      remember that?

              “A.   Yeah.

              “Q.   And do you remember saying no.

              “A.   Yes.” (Italics added.)
      This passage thus refutes defendant’s ineffective assistance claim in his new trial
motion, and shows that defense counsel impeached Sonia’s trial testimony with her prior
inconsistent statement to Officer Vargas – that defendant never penetrated her vagina.
      Defense counsel next asked Sonia if Officer Vargas asked her if defendant put his
hands “inside” her “opening,” and whether Sonia said yes. Sonia testified that she said
yes to Vargas.

             “Q. And during that incident when you spoke to the officer, did
      you tell him that [defendant] put his finger inside your private part?

              “A.   I don’t remember.

              “Q.   I’m sorry?

              “A.   I don’t remember.

              “Q.   You don’t remember?

              “A.   Huh-uh.

              “Q.   Okay. Did [defendant] put his finger inside your private
      part?

              “A.   I don’t remember.” (Italics added.)
      As we extensively discussed in issue II, ante, the prosecutor returned to this topic
during his redirect examination. Sonia testified she felt defendant’s palm touch her


                                             61
vagina, and circled that body part on the anatomically correct diagram. The prosecutor
asked Sonia about her inconsistent statements to Officer Vargas. Sonia testified she told
the truth to Vargas, but she was nervous and scared during the interview because the
incident had “barely happened,” and she did not tell Vargas everything that happened.
       The prosecutor again asked Sonia how defendant touched her:
              “Q.     Now to clarify, did the defendant touch you in the vagina?
              “A.     Yes.” (Italics added.)
       Defense counsel tried to further impeach Sonia on recross-examination, and asked
why she had changed her testimony. Sonia replied: “I don’t get your question because
you like you talk really fast.”

              “Q. And so when [the prosecutor] said ‘touch you in the vagina’
       you said yes without hesitation?

              “A.     Yeah.

             “Q. Did you just say that because [the prosecutor] asked it that
       way or because [defendant] actually … [¶] touched you inside your
       vagina?

              “A.     He did touch me.

              “Q.     Oh, he did?

              “A.     Yeah, but you were asking me another question.

             “Q. Okay. But when the officer asked you you said he didn’t, do
       you remember that?

              “A.     No.” (Italics added.)
       We conclude from these exchanges that defense counsel used Sonia’s prior
statements to Officer Vargas to try to impeach her trial testimony. Despite this cross-
examination, Sonia insisted defendant touched inside her vagina.
       In his new trial motion, defendant argued that counsel was ineffective because
“[t]he CD record was never read or introduced to the jury.” The record suggests defense
                                               62
counsel made a tactical decision not to introduce any portion of the actual recording into
evidence before the jury.
       Our review of the audio recording confirms the accuracy of the three excerpts
from the transcript as quoted in defendant’s new trial motion – that Sonia said
defendant’s fingers were “always on the outside.”
       After quoting these sections, defendant’s new trial motion further asserts that
Officer Vargas continued this line of questioning and Sonia “change[d] her story in an
apparent attempt to tell the officer what may have been the truth or what she believed at
this point the officer wanted to hear.” Defendant’s motion did not quote any portion of
the interview after this point.
       The entirety of the recording refutes defendant’s characterization that Sonia
changed her story to say what Officer Vargas wanted to hear. Instead, Vargas used
common terms to describe Sonia’s genitalia and what was depicted on the anatomically-
correct diagram. In response to these definitions, Sonia said defendant moved his hand
back and forth, and moved the two “flaps” or “parts” which covered the opening to her
genitalia, and that his fingers touched the inside of her “private part.”16
       The entirety of the record thus suggests defense counsel made the tactical decision
not to introduce any part of the actual interview between Officer Vargas and Sonia
because it supported the charged offense of sexual penetration.17


       16 There are several moments toward the end of the interview where Sonia
apparently demonstrated to Officer Vargas how she was touched. The preliminary
hearing transcript was not introduced at trial but, for purposes of defendant’s ineffective
assistance argument, it offers an explanation of Sonia’s gestures. At the preliminary
hearing, Vargas testified he asked Sonia if any of defendant’s fingers entered her vagina.
“When I asked her how – to describe how he massaged her vagina and entered into it, she
put her palm down, fingers extended on the table in front of us, and she began to make
circular motions while rubbing the table.”
       17 In another portion of the interview, Officer Vargas asked Sonia if defendant had
previously touched her. Sonia said no. Vargas asked, “Has he ever done this to anybody
                                              63
       Based on the record before this court, we find defendant’s new trial motion was
properly denied and trial counsel was not prejudicially ineffective in his cross-
examination of Sonia.
V.     Section 654
       Defendant’s final issue is that the court should have stayed the terms imposed for
counts II and III pursuant to section 654, instead of imposing concurrent sentences,
because he had a single intent and objective to touch Sonia during a single incident,
which resulted in all three convictions.
       A. Background
       At the sentencing hearing, the court advised the parties that it intended to impose
the midterm of eight years for count I, and concurrent terms for counts II and III. The
court said the probation report did not address whether the term for count II should be
stayed pursuant to section 654. The court further noted that section 243.4, subdivision
(g)(2) stated that “sexual battery” did not include the crimes defined in sections 261
(rape) and 289 (sexual penetration of a minor by force). The court believed that based on
the statutory definition, “this offense, Count 2 offense and Count 1 offense would in
essence not be [subject to section] 654 to one another. However, irrespective of that
pronouncement, the Court… intends to impose the middle term of Count 2 … and run
that concurrent with the sentence imposed in Count 1.”
       Neither the prosecutor nor defense counsel addressed the court’s findings about
section 654.




else?” Sonia said that she heard defendant had done something to his stepdaughter when
she was “small,” the girl did not say anything about it until she was older because she
was scared, and she had moved away. This evidence was not introduced to the jury.

                                             64
       Mr. Elia, representing defendant, asked the court to impose the lower term for
count I because the case was not as aggravated as other similar cases, and suggested that
defendant’s “religious conviction is so strong that he truly believes that he has healing
powers in his hands,” and he gave Sonia a massage that night because he believed she
was upset, but his attempts to calm her “went too far.”
       The prosecutor stated she was “appalled” by defense counsel’s attempt to
minimize the gravity of the situation given the impact of defendant’s conduct on the
victim.
       Sonia’s mother addressed the court and stated that her daughter’s life was not
normal anymore, she screamed in her bedroom, and she suffered and cried at night
because of what defendant did to her.
       The court adopted the indicated sentence and imposed the midterm of eight years
for count I, with a concurrent midterm of three years for count II, and time served for
misdemeanor count III, to run concurrent to the other counts.
       B. Analysis
       “In general, a person may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct. ‘In California, a single act or
course of conduct by a defendant can lead to convictions “of any number of the offenses
charged.” [Citations.]’ [Citation.] Section 954 generally permits multiple conviction.
Section 654 is its counterpart concerning punishment. It prohibits multiple punishment
for the same ‘act or omission.’ When section 954 permits multiple conviction, but
section 654 prohibits multiple punishment, the trial court must stay execution of sentence
on the convictions for which multiple punishment is prohibited. [Citations.]” (People v.
Reed (2006) 38 Cal.4th 1224, 1226–1227.) Section 654 does not allow any multiple
punishment, including a concurrent term. (People v. Deloza (1998) 18 Cal.4th 585, 592.)



                                             65
       At the sentencing hearing, the court addressed count I, sexual penetration of a
minor by force in violation of section 289, and count II, sexual battery in violation of
section 243.4, and cited one of the definitions within section 243.4: “ ‘Sexual battery’
does not include the crimes defined” in section 261, rape, or section 289, sexual
penetration of a minor by force. (§ 243.4, subd. (g)(2).) The court appeared to believe
that definition precluded application of section 654 to the terms imposed for counts I and
II. However, that definition appears relevant to the determination of lesser included
offenses rather than sentencing determinations.
       On appeal, the People assert for the first time that defendant actually committed
two separate acts of sexual penetration because he committed one act, Sonia pushed him
away, and then he committed a second act, such that multiple sentences were appropriate
for counts I and II. The People’s argument is based on People v. Harrison (1989) 48
Cal.3d 321 (Harrison), where the defendant was convicted of three counts of sexual
penetration in violation of section 289. He argued that while he was properly convicted
of committing three separate acts of penetration, the court should have stayed two of the
three terms under section 654 because “wholly identical sex offenses” were committed in
sequence, and he had one criminal objective to achieve sexual gratification. (Id. at
p. 336.) Harrison disagreed and held that “no special treatment is to be afforded to a
defendant under section 654 simply because he chose to repeat, rather than to diversify or
alternate, his many crimes. [Citations.]” (Id. at p. 337.) Section 654 was not applicable
because of the defendant’s intent “to commit a number of separate base criminal acts
upon his victim ….” (Id. at pp. 337–338.)
       There must still be an evidentiary basis to find that section 654 does not apply
under the circumstances discussed in Harrison. The trial evidence does not support the
People’s appellate argument that there were two acts of penetration to avoid application
of section 654. Sonia testified that as defendant moved his hands up her legs; she tried to

                                             66
flick his hand away from her body, but defendant did not stop and continued to move his
hands up her legs. When defendant touched her “private part,” she again tried to flick his
hand away and told him to leave her alone, but defendant did not stop and continued to
touch her. While Sonia tried to push defendant away, she testified that she was not
successful and she did not interrupt him as he committed the act of penetration.18 In
closing argument, the prosecutor argued to the jury that it should find defendant guilty of
count I, sexual penetration of a minor by force, and count II, sexual battery, based on
Sonia’s testimony that defendant entered her bedroom and his hand “made contact with
her vagina,” and he “touched the vagina.” The prosecutor argued that count III,
misdemeanor annoying or molesting a child, was based on defendant’s separate conduct
of taking advantage of Sonia, his goddaughter, who trusted him like he was her father,
and going into her bedroom and touching her in bed. The prosecutor never argued there
were two separate acts of penetration.
       Based on the entirety of the trial evidence, the court should have stayed the term
for count II since it was based on the very same act which was the basis for count I. (See,
e.g., People v. Alvarez (2009) 178 Cal.App.4th 999, 1007.) In contrast, misdemeanor
count III, annoying or molesting a child, was based on defendant’s conduct of taking
advantage of Sonia from his position of trust, such that section 654 would not apply.




       18 As we explained in issue III, post, Sonia’s testimony on this point does not
support Ngo’s analysis of whether the jury should have been instructed on attempt as a
lesser included offense. In Ngo, there was evidence the child’s mother interrupted the
defendant as he was molesting the victim, thus supporting the attempt instruction. (Ngo,
supra, 225 Cal.App.4th at p. 157.) In contrast, Sonia testified that defendant did not stop
when she tried to push his hand away.
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       The term imposed for count II must be stayed pursuant to section 654. This will
not affect defendant’s aggregate sentence of eight years since the court imposed a
concurrent term for count II.
                                      DISPOSITION
       The concurrent term imposed for count II is stayed pursuant to Penal Code section
654. The trial court is directed to prepare an amended abstract reflecting the modification
ordered by this court and to forward a certified copy of the abstract to the Department of
Corrections and Rehabilitation.
       In all other respects, the judgment is affirmed.



                                                                _____________________
                                                               POOCHIGIAN, J.
WE CONCUR:


______________________
LEVY, Acting P.J.


______________________
KANE, J.




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