Filed 3/11/14 P. v. Mendez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056980

v.                                                                       (Super.Ct.No. RIF1102065)

JOSE MENDEZ,                                                             OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge.

(Retired judge of the Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI,

§ 6 of the Cal. Const.) Affirmed.

         Torres & Torres and Tonja R. Torres, under appointment by the Court of Appeal,

for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, A. Natasha Cortina, Ron Jakob, and Kelley Johnson, Deputy Attorneys General,

for Plaintiff and Respondent.




                                                             1
       Defendant Jose Mendez attended a party at the apartment where Jane Doe lived.

Doe was eight years old at the time. While at the party, defendant forcibly took her to the

bathroom, removed her pants and underwear, and licked her vagina. Doe’s father found

Doe crying in the bathroom and she told him she had been touched by defendant. Doe’s

father beat up defendant and the police were called.

       Defendant was found guilty of oral copulation of a minor under 10 years of age

(Pen. Code, § 288.7, subd. (b)) and sexual assault of a minor under the age of 14 years

through the use of force, violence, duress, menace and/or fear of immediate and unlawful

bodily injury (§ 269, subd. (a)(4)). Defendant was sentenced to a state prison term of 15

years to life.

       Defendant makes one claim on appeal that his statements made to police at the

scene were obtained in violation of his rights against self-incrimination pursuant to

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and should have been suppressed.

We affirm the judgment.

                                              I

                                FACTUAL BACKGROUND

       A.        People’s Case-in-Chief

                 1.    Jane Doe’s trial testimony

       Jane Doe was nine years old at the time she testified at trial. She was born in

November 2002. Doe lived in a three-bedroom apartment in Corona with her mother,

N.V., and her father, O.V.




                                              2
       On April, 10, 2011, N. and O. had a family party at the apartment. Doe’s uncle

and aunt were at the apartment and brought defendant with them. Everyone was dancing

and the adults were drinking beer. Many of the people at the party were in the living

room playing music on the computer.

       Sometime during the night, defendant grabbed Doe’s arm and took her to the

bathroom.1 Doe claimed defendant grabbed her wrist and it hurt. A photograph taken

that night depicted a red mark on her wrist. However, at trial, Doe claimed that she got

the mark on her wrist the day before the party while playing baseball in her uncle’s

backyard.

       They went into the bathroom and defendant closed and locked the door. Doe first

could not recall anything that happened in the bathroom. She then recalled that defendant

sat her on top of the counter by the sink. Defendant took off her underwear and pants. 2

He then “licked” her “private areas” which she described as her “pee” area.3 His head

was on her stomach while he licked her. It felt “slimy” and “disgusting.” Defendant kept

his hands away from her and did not cover her mouth.

       She felt wetness just above where she went pee. She told him to stop but he kept

licking her. She initially stated that he never said anything to her but then said he asked

       1    Doe did not identify defendant in court but she did testify that O. beat up
the man who was in the bathroom with her. There was no dispute that O. beat up
defendant.

       2      On cross-examination she stated that her underwear was still on when she
got up on the counter and then it was taken off.

       3      She pointed to her crotch area when asked where her “pee” was located.


                                             3
her if she wanted to lick his “pee,” which she declined. He also told her that he loved

her.

       Doe stated at trial that the man in the bathroom with her did not have any tattoos

on his face or piercings on his face or ears. He had a mustache and a little hair

underneath. She also said the man had one tattoo by his eye. O. and N. were in the

kitchen while she was in the bathroom; she did not yell. She thought about screaming but

she never did.

       Defendant finished after about 13 seconds and turned off the light. He locked the

door and left. Doe could not find the doorknob. O. finally got a key to the bathroom and

let Doe out. Doe was crying because she was scared.

       Later that night, she did not take a bath or go to the bathroom. However, N. told

her to wipe herself with a baby wipe. She did not recall how much she wiped. Doe

recalled seeing a nurse after this happened; she told the nurse the truth. She told the truth

to the female officer she spoke to that night. She spoke with another woman about what

had happened and she told the truth. Doe told her aunt that night that defendant touched

her “pee-pee” with his hands.

       2.     O.’s testimony

       O. saw Doe sitting next to defendant in the living room during the party. O.

thought that defendant was being too friendly with Doe. O. did not observe defendant

pull Doe into the bathroom. O. saw defendant walk away from the bathroom and proceed

to sit on the couch. O. walked past the bathroom door; it was “half closed.” The lights

were off in the bathroom and he could hear Doe crying inside. She was hiding behind the


                                              4
door. Doe would not initially tell him what was wrong. O. asked her if defendant had

touched her and she immediately said yes. O. found defendant still sitting on the couch.

O. asked him what he had done to Doe and then he punched him.

      3.     Police investigation

      Corona Police Officer Jody Kozakowski spoke with defendant at the apartment.

Defendant told her he was 28 years old. Officer Kozakowski was called to the location at

approximately 2:00 a.m. to relieve another officer. Defendant was seated in a plastic

chair outside the apartment. Officer Kozakowski was assigned to stand near defendant

while other officers were inside the apartment. Officer Kozakowski and defendant talked

about how defendant wanted to stay at the apartment in order to make statements about

what had happened that night. They also discussed, among other things, that his fiancée

was pregnant and that he was a musician. Defendant told Officer Kozakowski that he

had been beaten up by the occupants of the apartment and they told him they were going

to call the police. Defendant told them to call the police because they would have to

explain why they had beaten him up. He said he had no reason to run.

      Defendant told Officer Kozakowski that Doe came onto him and wanted him to go

into the bathroom with her. Defendant resisted her efforts. Defendant went to the

bathroom and found her there. He also said she pulled him into the bathroom. He asked

her what she wanted and she responded, “What do you want.” Defendant then claimed

he realized it was a bad idea to be in the bathroom with Doe and left. Defendant admitted

being in the bathroom with Doe for ten minutes. He denied he urinated in front her.

Defendant claimed that Doe was “all up on him.”


                                            5
       Corona Police Officer Shannon Velasco indicated that defendant’s appearance had

changed since the night at the apartment. She had never seen him with tattoos on his

face. Officer Velasco spoke with Doe on that night at the apartment. Doe told Officer

Velasco that defendant took her into the bathroom in the hallway. Defendant went “pee”

while they were in the bathroom. She was in the bathtub while he urinated. She said his

underwear was blue. Defendant placed her on the counter and took off her pants and

underwear. She wanted to yell for help but he put his hand over her mouth. She showed

a mark on her wrist to Officer Velasco which she said she obtained when he dug his nails

into her wrist.

       Doe said defendant “licked her pee.” She told him to stop because it was hurting

her. Defendant told her he loved her. Doe also told Officer Velasco he licked her butt.

       Doe was interviewed by a child abuse interviewer on April 26, 2011. Defendant

(who she called Leche or Ritche) took her into the bathroom. Defendant asked her if she

wanted to lick his pee. Defendant pulled down his pants. His underwear was blue or

black. Defendant then urinated. She saw pee come out of his private part that looked

like a “weenie.” She wanted to leave the bathroom but there was some type of alarm on

the door. Defendant made her stand in the bathtub while he urinated.

       Doe claimed defendant had “lots of tattoos in his face, his wrist.” Defendant told

her she could not leave the bathroom. Defendant took off her clothes and licked her

“pee.” He sat her on the counter in the bathroom. Defendant tried to put his tongue

“inside” of her and it hurt. His pants and boxers were down while he licked her. His

hands were on the counter.


                                            6
       4.         Physical evidence

       Mirella Del Degan was a certified sexual assault nurse. Del Degan asked Doe

why she was in the exam room with her. Doe told her, “‘[t]his guy took me into the

bathroom and he licked my private.’” Doe told Del Degan that defendant dug his fingers

into her wrist and that it hurt. Doe said he scratched her. She explained to Del Degan

that defendant went to the bathroom in front of her and he did not wash his hands. He put

his hand over her mouth so that she could not yell for help.

       Del Degan observed red abrasive injuries on Doe’s wrist. The injuries were

consistent with her being scratched. There were no visible injuries on her vaginal area.

Del Degan then swabbed several areas including her upper inner thighs, her labia majora,

and the vulvar area for potential DNA.

       A swab was taken from defendant’s mouth on April 10, 2011. Defendant’s navy

blue underwear was taken into evidence.

       Mark Traughber was a senior criminalist employed by the Department of Justice.

He was an expert in analyzing DNA. Traughber tested the swabs taken from both

defendant and Doe. Traughber found no presence of semen. On the samples taken from

Doe’s vulvar area there was no presence of male DNA. On the sample taken from Doe’s

labia majora, a low amount of male DNA was found. On her right thigh, there was a low

amount of male DNA. There was a higher level of male DNA found in the sample from

her left thigh.

       Traughber could only try to compare the male DNA found on her left thigh.

Defendant’s DNA matched the sample taken from her left thigh. The possibility that


                                             7
another Hispanic male was the contributor was 1 out of 22 quadrillion. Traughber could

not determine conclusively that the male DNA was from saliva.

      B.     Defense

      Joanna Mendez was married to defendant. She had never seen him be sexually

inappropriate around children, including their nine year old daughter. Defendant never

had tattoos. Joanna and defendant had been separated since 2006. She admitted he had

not spent much time with their daughter since they separated.

      Erick Quintanilla had been friends with defendant for a long time. Quintanilla had

never seen him be sexually inappropriate with children.

                                                II

                                         ARGUMENT

                                 STATEMENTS TO POLICE

                  IN VIOLATION OF DEFENDANT’S MIRANDA RIGHTS

      Defendant contends that the trial court erroneously denied his motion to exclude

his statements made at the scene because the record shows he was “in custody” and not

free to leave when he gave incriminating responses to questions by Officer Kozakowski

without first being advised of his rights as required by Miranda. According to defendant,

Miranda warnings should have been given because the totality of circumstances show a

reasonable person in his situation would have believed he was in custody when he was

questioned by Officer Kozakowski.




                                            8
       A.     Additional Factual Background

       Prior to trial, defendant filed a motion in limine seeking to exclude any statements

he made to officers at the scene that were obtained without him being advised of his

Miranda rights. An Evidence Code section 402 hearing was held. Officer Kozakowski

testified.

       Officer Kozakowski was called to the apartment at approximately 2:00 a.m. She

relieved another officer who was to get off his shift. Officer Kozakowski stated her role

was to “stand by” defendant. Defendant was not handcuffed. He was not told he was

under arrest. He was seated in a chair outside the residence and appeared relaxed.

       Officer Kozakowski was in full uniform and had a gun on her belt. There were

three police cars on the scene. The other officer was within a few feet of defendant when

Officer Kozakowski arrived. She remained a couple of feet from defendant. Officer

Kozakowski would have had to check with the other officers at the scene to determine

whether defendant could have left if he wanted.

       Officer Kozakowski spoke with defendant about various things while standing by

him. She spoke to him about being a musician and that his fiancée was pregnant.

Defendant told her how he got to the location that night with his friend. Defendant told

Officer Kozakowski that he was a victim of a crime and that is why he stayed. He told

her he had nothing to be afraid of and that he was beaten up by the occupants of the

apartment. He was not afraid when the occupants of the apartment told him that they

were going to call the police.




                                             9
       Officer Kozakowski talked to defendant about the fight. Another officer pulled

Officer Kozakowski aside and told her that there may be a warrant out for defendant’s

arrest but then determined it was not defendant. Defendant was asked to come to the

police station to talk further about the events of the night and he willingly went to the

police station. He was told that he did not have to go to the police station. He was

additionally told he was not under arrest.

       At some point, defendant told Officer Kozakowski the police were called because

the occupants of the apartment thought he molested one of the girls in the apartment and

so they beat him up.

       The People argued that Officer Kozakowski was standing by defendant and

maintaining the scene. Defendant was relaxed and sitting in a chair. He complained

about being a victim of a crime. There was no indication that defendant was under arrest.

Defendant volunteered why the occupants had beat him up. At no time did defendant

believe there was a warrant out for his arrest. He was told he was not under arrest when

they asked him to come to the police station. The People argued there was no indication

that defendant believed he was detained.

       Defendant’s counsel argued the measure of whether defendant was detained is

what a reasonable person would think, and not what defendant thought in his mind. It

was clear that defendant was not free to leave because he was a molestation suspect.

       The trial court ruled as follows: “Based on the testimony that I’ve heard, I made

two observations. First, I do not find that this was a custodial situation. They wanted to

talk to him. It was an investigatory-level thing to see what happened, what have we got


                                             10
here. We have someone who was allegedly beaten, we have an allegation of molest . . .

Second, from what I heard, I don’t believe this was an interrogation. This was not a

setting where they sat him down and asked him pointed questions. They just were

shooting the breeze and talking and it came up and they talked about him being the

victim, and he talked about what he had been accused of. But it wasn’t the result of

pointed questions that brought those things out. And on that basis, I would deny a motion

to keep that out.”

       B.     Analysis

       “Miranda warnings are required ‘as soon as a suspect’s freedom of action is

curtailed to a “degree associated with formal arrest.”’ [Citation.]” (People v. Pilster

(2006) 138 Cal.App.4th 1395, 1403 (Pilster).) “Custody determinations are resolved by

an objective standard: Would a reasonable person interpret the restraints used by the

police as tantamount to a formal arrest? [Citations.] The totality of the circumstances

surrounding an incident must be considered as a whole. [Citation.] Although no one

factor is controlling, the following circumstances should be considered: ‘(1) [W]hether

the suspect has been formally arrested; (2) absent formal arrest, the length of the

detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of

the officer, including the nature of the questioning.’ [Citation.] Additional factors are

whether the suspect agreed to the interview and was informed he or she could terminate

the questioning, whether police informed the person he or she was considered a witness

or suspect, whether there were restrictions on the suspect’s freedom of movement during

the interview, and whether police officers dominated and controlled the interrogation or


                                             11
were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect,

and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (Id.

at pp. 1403-1404, fn. omitted.)

       “[T]he term ‘interrogation’ under Miranda refers not only to express questioning,

but also to any words or actions on the part of the police (other than those normally

attendant to arrest and custody) that the police should know are reasonably likely to elicit

an incriminating response from the suspect.” (Rhode Island v. Innis (1980) 446 U.S. 291,

301, fns. omitted.) Stated another way, “[t]he questioning prohibited by Miranda means

‘substantive questions which portend to develop the facts under investigation.’

[Citations.]” (People v. Patterson (1979) 88 Cal.App.3d 742, 748.) “In deciding whether

police conduct was ‘reasonably likely’ to elicit an incriminating response from the

suspect, we consider primarily the perceptions of the suspect rather than the intent of the

police.” (People v. Davis (2005) 36 Cal.4th 510, 554.)

       “The question whether defendant was in custody for Miranda purposes is a mixed

question of law and fact.” (People v. Ochoa (1998) 19 Cal.4th 353, 401.) “We apply a

deferential substantial evidence standard to the trial court’s factual findings, but

independently determine whether the interrogation was custodial. [Citation.]” (Pilster,

supra, 138 Cal.App.4th at p. 1403.)

       First the trial court did not err by finding that defendant was not in custody as the

facts do not support a reasonable person in defendant’s position would feel he was not

free to leave. Officer Kozakowski was by herself outside and was only briefly joined by




                                              12
another officer. Officer Kozakowski never informed defendant he was under arrest and

he voluntarily went to the police station after his statements to her.

       An additional factor to consider is whether the suspect agreed to the interview.

(Pilster, supra, 138 Cal.App.4th at p. 1403.) Here, defendant told Officer Kozakowski he

wanted to stay and tell the police that he had been beaten up by the occupants of the

apartment. The totality of the circumstances established that defendant was not in

custody.

       Further, the evidence did not establish that defendant was interrogated. Officer

Kozakowski described a casual conversation with defendant. He was relaxed and seated

in a chair. They discussed his employment as a musician and that his fiancée was

pregnant. He volunteered statements he wanted to make: he had been beat up by the

occupants of the apartment. Officer Kozakowski did not question defendant about what

had happened but at some point he volunteered statements that he had been in the

bathroom with Doe. Defendant was told he did not have to go to the police station after

making the statements but that they wanted to take him to the station to be interviewed.

Defendant agreed to go to the police station. The evidence before the trial court

established that defendant was not subject to interrogation by Officer Kozakowski but

rather was engaged in a casual conservation during which he volunteered incriminating

statements.

       Even if we were to find that a Miranda violation occurred, “[t]he erroneous

admission of statements obtained in violation of Miranda is reviewed for prejudice

pursuant to Chapman v. California (1967) 386 U.S. 18 (Chapman). [Citations.] Under


                                             13
Chapman, reversal is required unless the People establish that the court’s error was

‘harmless beyond a reasonable doubt.’ [Citation.]” (In re Z.A. (2012) 207 Cal.App.4th

1401, 1422.) “Under [the Chapman] test, the appropriate inquiry is ‘not whether, in a

trial that occurred without the error, a guilty verdict would surely have been rendered, but

whether the guilty verdict actually rendered in this trial was surely unattributable to the

error.’ [Citation.]” (People v. Quartermain (1997) 16 Cal.4th 600, 621.)

       The instant case does not turn on defendant’s statements to Officer Kozakowski,

but rather on Doe’s testimony and the DNA evidence. Doe certainly had many

inconsistencies in her various statements made to the police, the sexual abuse interviewer

and even at trial. However, she consistently stated that defendant had licked her on her

“pee,” her private area. That testimony was corroborated by the DNA evidence which

showed a minor amount of male DNA on her labia majora and a large amount, which

matched defendant, on her thigh. Defendant was seen leaving the bathroom by O.

Defendant’s statements only added to the already overwhelming evidence of defendant’s

guilt but cannot be attributed to the guilty verdict.

       The People contend that the statements made by defendant were not a confession

to the crimes and therefore did not contribute to the People’s case. In closing argument,

the prosecutor argued that the statements made by defendant were “stupid” and “puts the

nail in the coffin” that he committed this act. If he was innocent, he would not have said

they had to go inside to do something. Defendant admitted that he was inside the

bathroom for ten minutes with her. The prosecutor argued, “What is a grown man doing

in a bathroom, after drinking, for ten minutes with an eight-year-old child?” The


                                              14
prosecutor clearly used his statements to show defendant’s guilt. However, it was not the

only evidence and had the statements been excluded, defendant would still have been

found guilty.

      Defendant complains on appeal that the DNA evidence was weak. However,

below, defendant’s counsel essentially conceded the DNA evidence was important in

arguing only an attempted crime was committed (he only licked her thigh) while

admitting some contact occurred. The minimal DNA evidence found in her vagina was

explained by the sexual assault nurse as likely being caused by her wiping herself with

the baby wipe.

      Finally, it is clear from the instructions that the jury did not convict defendant

solely on the basis of his statements. The jury was instructed as follows: “You have

heard evidence that the defendant made oral or written statements before the trial. You

must decide whether the defendant made any of these statements, in whole or in part. If

you decide that the defendant made such statements, consider the statements, along with

all the other evidence, in reaching your verdict. It is up to you to decide how much

importance to give to the statements . . . . The defendant may not be convicted of any

crime based on his out-of-court statements alone. You may only rely on the defendant’s

out-of-court statements to convict him if you conclude that other evidence shows that the

charged crime or a lesser included offense was committed. [¶] That other evidence may

be slight and need only be enough to support a reasonable inference that a crime was

committed.” We presume the jury followed the instructions. (People v. Yeoman (2003)

31 Cal.4th 93, 139.)


                                            15
      Based on the foregoing, we find the trial court properly admitted defendant’s

statements to Officer Kozakowski at trial, and even if the statements should have been

excluded, any error was harmless beyond a reasonable doubt.

                                           III

                                     DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                              RICHLI
                                                                                         J.

We concur:


RAMIREZ
                       P. J.


CODRINGTON
                          J.




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