Filed 5/14/14 P. v. Tapia Ca4/3




                     NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047788

         v.                                                            (Super. Ct. No. 12CF1095)

JOSE LUIS TAPIA,                                                       OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
                   Russell S. Babcock, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
                                         *                   *                   *
             A jury found Jose Luis Tapia guilty of sexual battery, simple battery and
false imprisonment by violence, and not guilty of burglary, assault with intent to
commit rape and false imprisonment. The court placed defendant on three years of
formal probation, one of the terms and conditions of which was serving 364 days in
jail.
             On appeal, defendant contends the court erred in limiting cross-
examination of the victim, permitting the introduction of a statement made to police
and that there was insufficient evidence to sustain his conviction for false
imprisonment by violence. Finding no error, we affirm.
                                            I
                                        FACTS
             M. V. lives in an apartment on Parton Street in Santa Ana. Defendant is
the brother-in-law of the apartment manager.
             On April 11, 2012 at about 2:15 in the afternoon, when she was three
months pregnant, she was lying in bed with her infant daughter, who was sleeping,
and her four-year-old son, who was watching television when she heard a noise. She
then felt “like a shadow like standing like next to” her. Defendant was “standing like
right next to [her] bed.” She added she could smell alcohol and that he was “like
drunk.”
             Defendant grabbed her breast, and said, “I can see your nipple.” He
chased her around the bed, and pulled the blanket away. She described what
happened next: “And then he just grabbed me and he tried to grab my leg, and then
he is like, are you wearing underwears? I was like, that’s not none of your business.”
She took his hand away, and “then like he just got on top of [her], and that’s when
[her] daughter woke up and she started crying and shaking. Because she saw him on
top of [her]. And [she] told him, get off, you’re hurting me.” He was “like hugging”
her. She pushed defendant away. She started screaming for the apartment manager.

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              At some point, she threw his cell phone out of her bedroom and he
walked toward it. She closed the door to her bedroom and “he grabbed the knife, like
butter knife. And he tried to open [her] door again saying he wasn’t able to find his
phone outside.” He tried to force open the bedroom door, and she locked it. He kept
saying he couldn’t find his phone, and she opened the bedroom door, and pointed
outside her apartment so that he would look for his phone there. She said: “[H]e still
had the knife in his hand saying give me my fricking phone. I want my phone.” Once
he was outside, she locked the door to the apartment and closed the window. V.
called the police.
              She described what happened next: “Well, he said he couldn’t find the
phone, that I still had it in my hand, and that I was going to steal it. That’s when I told
him why would I want your phone if I have my own cell phone? So he got mad and
he started pulling the grass all over and throwing grass. And with the knife digging in
the sand. And he got mad and he came and kicked my door and he was tapping on the
window.” Then he kicked open the door to her apartment.
              V. told defendant she had called the police. He found his phone, got on
his bike and “took off.” She did not see what he did with the knife.
              Santa Ana police officers found V. distraught, upset and crying. Police
found the knife in a planter outside V.’s front door.
              At approximately 4:00 that afternoon, police interviewed defendant. An
officer described defendant’s demeanor: “His speech was slow and deliberate. It was
slurred. I had to repeat myself several times. And/or attempt to draw a decisive
answer from the questioning. Because in my opinion, because of his inebriation.”
              Defendant admitted V.’s door was locked when he got there. Defendant
reached through an open window and unlocked V.’s front door and let himself inside.
He said he patted V., but he did not grab her, explaining: “I went over to visit her and
I sat down and I talked to her, but I mean that was it. I didn’t go in with the intentions

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that I was going to like have any sex with her or nothing like that. All I wanted to do
was just talk to her.” He added that he did sit on the bed, and said, “because, like I
said, I missed her and I wanted to be next to her so I kind of, I just gave her like a
little hug, you know, like a friendly hug, you know.”
                                            II
                                     DISCUSSION
V.’s Tattoo
              During defense counsel’s cross-examination of V. at trial, counsel asked:
“You have a tattoo on the back side of your body?” and she responded “Yes, I do,”
just after the prosecutor objected on the basis of relevance. Defense counsel informed
the court the relevance was to show defendant had firsthand knowledge of “an
intimate part of her body.” The court inquired exactly where the tattoo was, but
defense counsel did not want to violate his client’s confidentiality by telling the judge
where it was. The court then offered to bring the witness back to chambers and
inquire more about it, but defense counsel did not want to do that. The court sustained
the objection.
              Defendant’s first contention on appeal is: “The trial court committed
reversible error by barring cross-examination of the complaining witness regarding a
tattoo on an intimate part of her body.” He reasons that central to the defense theme
was the discrediting V.’s testimony that she was never intimately involved with him.
              On appeal, defendant provides two bases for the relevancy of V.’s tattoo:
“(1) it would have provided independent, corroborative evidence of their sexual
encounters and (2) it would have undermined Ms. V.’s credibility” since she denied
the two had ever had a sexual relationship.
              “No evidence is admissible except relevant evidence.” (Evid. Code, §
350.) If the probative value of evidence is substantially outweighed by the probability
that its admission will necessitate undue consumption of time or create a substantial

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danger of undue prejudice, confusing the issues or misleading the jury, the court has
the discretion to exclude relevant evidence. (Evid. Code, § 352.) A trial court’s
evidentiary ruling is reviewed for abuse of discretion. (People v. Jablonski (2006) 37
Cal.4th 774, 821.)
             It is unknown where the tattoo is located on V.’s body. The court
requested and attempted to glean more information but was unsuccessful. It could
have been located on a part of the body easily visible to anyone, or visible to
defendant when he pulled Valazquez’s blanket away or chased her around the bed.
             Under the circumstances we find in this record, we cannot conclude the
court abused its discretion when it excluded evidence of the victim’s tattoo. The
proffered evidence had only marginal relevance, and was substantially outweighed by
the risk of undue prejudice. Even if the court erred in excluding this evidence, which
we do not find, we cannot conclude its admission would have made any difference in
the jury’s determination, and, in light of the overwhelming evidence to support the
judgment, we do conclude it was harmless under any standard. (Chapman v.
California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)


Defendant’s Miranda Waiver
             Defendant next contends: “The court erred in admitting the police
statement of [defendant] because any purported Miranda [v. Arizona (1966) 384 U.S.
436] waiver of [defendant’s] Fifth Amendment rights was invalid.”
             At the beginning of the police interview of defendant on the day of the
crimes, the following questions and answers were asked by a police officer and
answered by defendant:
             “[Q]: OK. Jose, before we get started, I’m going to read you your
rights. I want to make sure you understand them. You ready?
             “[A]: Yeah.

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              “[Q]: OK. Jose, you have the right to remain silent, do you understand?
              “[A]: Yes.
              “[Q]: Anything you say may be used against you in court, do you
understand?
              “[A]: Yes.
              “[Q]: You have the right to an attorney before and during questioning,
do you understand?
              “[A]: Yes.
              “[Q]: If you cannot afford an attorney, one will be appointed for you
before questioning, do you understand?
              “[A]: Yes.
              “[Q]: Can we talk about what happened?
              “[A]: Yeah . . . .”
              When the prosecutor requested the court’s permission to play a recording
of the police interview of defendant, defense counsel objected, and stated at the
sidebar: “The officer just testified that he was so inebriated he was not able to answer
questions, so then can he give a Miranda waiver at that point? Does he have — did
he have enough capacity to waive his Miranda rights? If he could not answer
questions according to this officer’s testimony, could he have given a Miranda?” At
that point, the court excused the jury and listened to the testimony. The court then
heard from counsel and ruled: “In respect to the defendant’s demeanor on the tape, he
speaks clearly. He is calm. He is apparently articulate. He is animated, especially at
the point of the cell phone and it being a gift. I don’t see impairment there. I mean,
okay, he has been drinking. . . . I don’t see that there’s an issue about his ability to
waive Miranda.” The court concluded: “The motion to suppress the statement under
inability to knowingly, intelligently waive the rights, is denied.”



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              In Miranda v. Arizona, supra, 384 U.S. 436, the Supreme Court stated
that “[u]nless adequate protective devices are employed to dispel the compulsion
inherent in custodial surroundings, no statement obtained from the defendant can truly
be the product of his free choice.” (Id. at p. 458.)
              On appeal, we defer to the trial court’s factual findings which are
supported by substantial evidence and independently determine whether the statement
was obtained in violation of Miranda. (People v. Nelson (2012) 53 Cal.4th 367, 380.)
              “Just as ‘The mere fact of ministration of drugs does not establish an
impairment of capacity so as to render a confession inadmissible’ [citations] so too the
mere fact of voluntary consumption of alcohol fails to establish such an impairment.”
(People v. Hendricks (1987) 43 Cal.3d 584, 591.)
              We have both listened to the audio and read the transcript of the police
interrogation of defendant. We conclude defendant comprehended all the information
the police were required to convey when defendant’s Miranda rights were conveyed
to him, that defendant understood everything being said and that he intelligently and
voluntarily waived those rights. Throughout the entire interrogation as well,
defendant provided appropriate responses to police inquiries, showing no difficulty in
understanding all the questions posed to him. Nothing we heard or read in the
interrogation indicates defendant lacked the capacity to completely appreciate and
grasp his circumstances.


False Imprisonment
              According to defendant: “There was insufficient evidence to convict
[him] of false imprisonment because [he] neither restrained the complaining witness
from leaving her apartment nor used violence or menace.” He says swearing,
touching or being loud and obnoxious “does not imprisonment make.” He further



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argues: “There is no evidence that [he] ever blocked or impeded Ms. V.’s ability to
leave her bedroom.”
             In assessing an insufficiency of the evidence claim, a reviewing court
must review the entire record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence which is reasonable, credible and
of solid value “such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
             “False imprisonment is the unlawful violation of the personal liberty of
another.” (Pen. Code, § 236.) “If the false imprisonment be effected by violence,
menace, fraud, or deceit, it shall be punishable by imprisonment pursuant to
subdivision (h) of Section 1170.” (Pen. Code, § 237, subd. (a).) Felony false
imprisonment is “‘effected by violence, menace, fraud, or deceit.’” (People v.
Wardell (2008) 162 Cal.App.4th 1484, 1490.) “‘Menace’ is defined as ‘“‘a threat of
harm express or implied by word or act.’”’ [Citation.]” (People v. Reed (2000) 78
Cal.App.4th 274, 280.)
             Apparently defendant expects to convince this court that a screaming
pregnant woman was not blocked or impeded, while having an infant and another
small child to protect, when he unexpectedly appeared above her bed, felt her breasts,
threw himself on top of her, chased her, made sexual comments, and after she used a
ruse to get him out of her bedroom he then used a knife to try to force his way back in
through her only exit. Under the circumstances we find in this record, we must
conclude there is substantial evidence defendant used both violence and menace when
he violated V.’s personal liberty.




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                                           III
                                    DISPOSITION
             Because we find the trial court did not err in its evidentiary rulings, we
need not address defendant’s contention the cumulative effect of the court’s
evidentiary errors denied him due process. (People v. Edwards (2013) 57 Cal.4th
658, 704-705.) The judgment is affirmed.




                                                 MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.




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