Opinion
G056030
09-20-2019
THE PEOPLE, Plaintiff and Respondent, v. RODOLFO VALENTINO PAZ, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15HF0088) OPINION Appeal from a judgment of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Rodolfo Valentino Paz appeals from the judgment following his conviction on three counts of oral copulation with a child 10 years of age or younger when he was at least 18 years old (Pen. Code, § 288.7, subd. (b)), one count of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a)), two counts of aggravated sexual assault of a child under the age of 14 who was at least seven years younger (§ 269, subd. (a)(1)), and one count of aggravated sexual assault of a child (sodomy) under the age of 14 who was at least seven years younger (§ 269, subd. (a)(3)). Paz's victim on each of the counts was his stepdaughter.
All further statutory references are to the Penal Code, unless otherwise indicated.
Paz contends the judgment must be reversed because: (1) there was insufficient evidence to establish that his victim was 10 years of age or younger at the time of the acts underlying the three oral copulation counts (counts 1-3); (2) there was insufficient evidence to establish that he used force, violence, duress, menace, or fear of immediate bodily injury to accomplish the act of intercourse, as alleged in connection with two of the acts of aggravated sexual assault (counts 5 and 6); (3) the court erred by allowing the prosecution to rely on hearsay evidence to establish his age, which is a required element of counts 1-3 and 5-7; (4) the court erred by admitting into evidence statements he made to a sheriff's deputy before he was advised of his Miranda rights; and (5) the court erred by failing to instruct the jury on the lesser included offense of unlawful sexual intercourse with a minor three years younger (§ 261.5, subd. (c)), in connection with counts 5 and 6.
Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602.
We find none of those contentions to be persuasive and therefore affirm the judgment. There was direct evidence from both Paz and his victim that she was 10 years old or younger when the oral copulation occurred. The fact there was additional, arguably inconsistent, evidence on the point raised credibility issues which the jury, as evidenced by its verdict, resolved against Paz. We do not address such issues on appeal. There was also sufficient evidence that Paz employed duress—in the form of threats—to coerce his young stepdaughter into complying with his demands for intercourse; it was for the jury to decide whether a reasonable person in her position would have succumbed to such coercive acts.
Paz waived his hearsay objection to the testimony establishing his birthdate by failing to assert it at trial, but even if he had objected, we would find any error harmless because the jury could assess his age based upon his appearance in the courtroom and his status as the victim's stepfather. We also reject Paz's alternative contention that he is entitled to relief on the ground his counsel was ineffective for failing to assert the hearsay objection. Given that Paz was a decade older than necessary to satisfy the age-related elements of the relevant statutes, we conclude that even in the absence of the direct evidence establishing his birthdate, there is no reasonable probability the jury would have doubted he satisfied those elements.
Paz's challenge to the admission of his interview fails because the interview was conducted on a public street, and the deputy who interviewed Paz advised him repeatedly that he was not under arrest and was not required to answer any questions. Even assuming there were other factors that might arguably support a determination the interview was a custodial interrogation, these factors were sufficient to support the court's conclusion it was not.
And finally, we reject Paz's contention that the court violated its sua sponte duty to instruct the jury on unlawful sexual intercourse because we conclude the evidence was insufficient to convince a reasonable juror that Paz's stepdaughter willingly engaged in sexual intercourse with him.
Paz also argues that the cumulative effect of the asserted errors was prejudicial, even if none of the asserted errors was prejudicial by itself. Having rejected each of his claims, we need not address that argument.
FACTS
The crimes charged against Paz came to light in January 2015, when his 13-year-old stepdaughter, identified as Jane Doe, reported to the community liaison coordinator at her middle school that Paz had sexually abused her. A school representative contacted the Orange County Sheriff's Department.
Sergeant Brent Jasper of the sheriff's department came to Doe's school the same day and arranged for her to make covert phone calls to Paz. During the first call, Doe told Paz that she wanted to speak to him without her mother hearing. She explained she was scared because she had taken "a class on diseases you can get when you have sex. . . ." She then asked him, "Do you think that I can get a disease from you like when, like when we had sex." Without denying her premise, he responded "No."
Doe also said to Paz: "you made me suck your penis but like they said I could get a disease doing that and that could take years, like why did you make me do it?" Paz replied, "No, you don't have anything like that." When Doe asked him, "But why did you make me like suck your penis though?" Paz responded, "Huh?" And when she asked again, Paz said "How?" When she asked essentially the same question a third time, Paz replied, "I'm going to pick you up from there now." Doe balked, saying, "Why, I want to know[,] if not I'm not going with you because, like I'm scared but promise me you won't have sex with me anymore?" Paz responded, "Yeah I didn't have anything with you."
In the second phone call, Doe's mother was with Paz when he answered, and she insisted he hand her the phone. She then told Doe to call her, not Paz.
The third call happened during school pick-up time, and Doe asked Paz if he was with her mom, to which he responded "Yes she's here with me walking," and he then explained they were walking "[b]ecause they're looking for your mom." Doe again told Paz she did not want to go home with him "because we had health education classes today and I'm like scared that I might have an illness." Paz responded, "No don't worry everything, you're going with your mom. . . . that's all." Doe asked Paz, "You don't think I can get an illness?" He replied, "No you're fine, you're fine[,] nothing has happened, focus on that you and your mom will be fine okay? They're looking for your mom."
Doe again mentioned health class and reiterated she was scared about the illnesses she might have contracted "when you had sex with me." Paz replied, "Don't worry you don't have anything, nothing has happened to you everything is fine have faith in [G]od." She pressed: "But why did you do it?" He responded, "Have faith in [G]od." Only after she repeated the question did Paz respond "I have done nothing to you."
Sergeant Jasper—who was accompanied by a female Spanish speaking investigator who was also in plain clothes—located Paz that same afternoon outside an elementary school. Both Jasper and the investigator were wearing plain clothes and their weapons were concealed. Jasper told Paz that he and the investigator were from the sheriff's department, and they asked to speak with him. Paz sat down on the curb and Jasper sat next to him. Initially, Paz was concerned they were interested in an arrest warrant pertaining to his wife (Doe's mother), but Jasper told him they were not concerned about that.
Jasper also told Paz "you're not under arrest," and informed him he was not obligated to talk to them if he did not want to. He then told Paz that he wanted to ask what happened with Doe and to get Paz's side of the story.
In response to Jasper's questions, Paz acknowledged Doe had called him that day. He claimed he did not understand what she had been talking about. Paz initially denied anything sexual had ever happened between Doe and him. However, after Jasper reiterated that Paz was not under arrest and told him, "I know more than you probably think I do," Paz changed his story. He emphasized that he had "never forced [Doe]" and explained that she had asked him because she wanted to "experiment but not with the two kids that she likes."
Paz claimed he had taught Doe to kiss one time and that they had vaginal intercourse only one time. He again denied ever using force. At that point, Jasper reiterated that he was "not arresting you," and that "you don't have to talk to us. We just wanted to get your side of the story."
Paz estimated that the one incident of intercourse had taken place two years earlier, when Doe was about 11. He admitted Doe had given him oral sex "like three" times, once before they had intercourse and twice after. He claimed all of the incidents of oral sex were in the same year as the intercourse, when Doe was "almost 12." But Paz revised his estimate of Doe's age when Jasper told him that Doe had claimed she was between 8 and 9 when they had oral sex, responding "I think she was 10." Paz then confirmed, twice, that he had oral sex with Doe "three times" within a week when Doe was 10 years old.
Paz initially denied engaging in anal sex with Doe, claiming he had only put his penis in "her normal part." But when Jasper suggested Doe had accused him of forcing her into anal sex, Paz acknowledged he had engaged in anal sex with Doe "like two times," describing it as "something that happened without force." Paz claimed the anal sex incidents had taken place before the vaginal intercourse; he estimated that Doe was 11 at the time.
Paz was charged with three counts of oral copulation with a child 10 years of age or younger when he was at least 18 years old (§ 288.7, subd. (b)) (counts 1-3); one count of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a)) (count 4); two counts of aggravated sexual assault (rape) of a child under the age of 14 who was at least seven years younger than he (§ 269, subd. (a)(1)) (counts 5-6); and one count of aggravated sexual assault (sodomy) of a child under the age of 14 who was at least seven years younger than he (§ 269, subd. (a)(3)) (count 7). The information also alleged, in connection with count 4, that Paz had substantial sexual conduct with a child. (§ 1203.066, subd. (a)(8).)
At trial, Doe testified that Paz became her stepfather when she was seven years old, and that he began touching her in a sexual manner when she was "about eight and a half," while she was still attending elementary school.
Although Doe characterized Paz as her "stepfather" from the time she was seven, she clarified she was referring to her age at the time Paz moved in with her family. He and her mother were married "later on."
Doe testified they had been living in an apartment in Lake Forest for about a year when Paz took her into the closet of the master bedroom, pushed her onto her knees, unzipped his pants, and told her to suck on his penis. When Doe's mouth was on his penis, Paz put his hand on the back of her head, pushing it back and forth. She was scared because he told her not to tell her mother or "very bad things can happen."
Doe testified that she sucked Paz's penis "three or four times," within "a handful of months," and each time was "in a similar manner." All of those incidents occurred when she was "approximately eight or nine years old." Under cross-examination, Doe agreed with statements that the oral copulation incidents happened in "maybe fourth or fifth grade." She also agreed that it was "fair to say that you don't remember a whole lot about the dates or the time or the year that this took place."
Doe testified to other incidents in which Paz touched her breasts and vagina over her clothing, and one time when he also inserted his fingers into her vagina. She recalled that occurred before the oral copulation incidents when her family was renting a room in a different apartment.
Doe also described an incident which occurred after the oral copulation incidents, in which Paz took her into the same closet, but turned her around so her back was facing him and pulled down her pants. He then "touched his penis to make it hard" and "put his penis inside of [Doe's] vagina." She did not say anything to him because she was afraid, but she tried unsuccessfully to push him away.
Doe testified that Paz had vaginal intercourse with her "three or four times." She estimated this happened when she was 10 or 11, and then stated it was "maybe a little bit after" fifth grade, perhaps in the "summer of fifth grade going into sixth."
Doe estimated that the final incident of vaginal intercourse occurred when she was "a little bit before 13," and probably while she was in seventh grade. She also estimated it had occurred three to five months before she reported the sexual abuse at school. Doe testified that the final incident had taken place while her mother was in the shower. Paz told Doe to go into the living room and lie on her back. She did what he told her to do because she did not want him to hurt her mom or her sister. Paz pulled Doe's pants down, pulled his own pants down, and put his penis inside her vagina. Doe closed her eyes because it hurt.
Doe also testified regarding an additional incident, which occurred during the time her family was renting a room in another apartment, when Paz told her to go into a bathroom that was outside their room. Paz joined her in the restroom and told her to lay the upper half of her body over the counter top. He pulled her pants down, put his hand on her to push her over the counter, and then "put his penis inside of [her] butt hole." Doe said it hurt very much. She told him to stop, but he refused. Doe stated that this incident of anal penetration occurred after the oral copulation, and after the first incident of vaginal intercourse, but before the last incident of vaginal intercourse.
Paz did not testify or offer any witnesses in his defense. The jury convicted him on all counts, and the court later sentenced him to a combined term of 98 years to life.
DISCUSSION
1. Sufficiency of the Evidence to Establish Doe's Age
Paz first contends that his convictions on counts 1-3, alleging he engaged in oral copulation of a child 10 years or younger, must be reversed because there was insufficient evidence to establish that Doe was 10 years old or younger at the time of the crimes. We disagree. Not only did Doe herself testify she was 10 years old or younger when the oral copulation took place, but Paz also estimated Doe had been 10 years old during his interview with Sergeant Jasper. That evidence is sufficient to uphold the jury's finding. It is irrelevant that both Doe and Paz also made arguably inconsistent or contradictory statements about the timing of the oral copulation.
As explained in People v. Mejia (2007) 155 Cal.App.4th 86 (Mejia), the fact that a victim testifies in a self-contradictory manner about the timing of her molestation does not mean her testimony was insufficient to support a finding on that point. In Mejia, the defendant was convicted of two separate acts of molestation in the month of October 2004. He argued on appeal that "the victim's testimony concerning whether he molested her more than once in that month was so self-contradictory that it cannot be deemed sufficient evidence under the federal Constitution's due process standard." (Id. at p. 98.) The appellate court acknowledged the victim's testimony was contradictory on the point, but concluded "the contradictions in her testimony merely raised a credibility issue for the jury to resolve." (Ibid.)
"The victim's testimony provided the sole evidence concerning sexual abuse in October. She testified on cross-examination that defendant molested her more than two times in that month. On recross-examination, defense counsel asserted that she had testified that defendant did not molest her at all in October of 2004. The victim denied that assertion, responding that she had said 'about once.' When defense counsel asked her to state the number of times defendant had molested her in October, the victim said, 'I don't really remember much of October.'" (Mejia, supra, 155 Cal.App.4th at p. 98.)
The same is true here. Doe's testimony was somewhat inconsistent in establishing the timing of the oral copulation, which allowed Paz to challenge her credibility on that point. He seized upon that opportunity in closing argument: "[Doe]'s testimony. Let's talk about the issues in her testimony. [¶] Numerous issues with respect to ability to recall, which goes to credibility. Issues with respect to specificity of dates, times, events. Go back to her testimony. Do you really believe there are no issues with respect to her ability to recall the events? . . . [¶] . . . [¶] How old was she at the time she alleges the first act occurred? What proof is there that she's 8 or 9? What proof is there that she's under 10?"
Ultimately, the jury believed Doe's claim (likely bolstered by Paz's own admissions) that she had been 10 years or younger at the time of the oral copulation incidents. And because there was nothing inherently implausible about that claim, we cannot second guess the jury's credibility finding on appeal.
"'"'To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] 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.]'. . . ." [Citation.]'" (Mejia, supra, 155 Cal.App.4th at p. 98, quoting People v. Barnes (1986) 42 Cal.3d 284, 306.)
Paz himself relies on Mejia to support his contention that the evidence is insufficient to establish Doe's age, but his reliance focuses on a different issue addressed in the case. Specifically, Paz relies on the language in Mejia where the court concluded there was no substantial evidence to support a finding the defendant had engaged in the continuous sexual abuse of his victim for a period of at least three months before her 14th birthday on September 18. Although the victim's testimony (which again was somewhat vague and contradictory) included the assertion that the abuse had commenced "sometime in June" (Mejia, supra, 155 Cal.App.4th at p. 94), the victim never specified the date in June on which the abuse first occurred. Hence, as the Mejia court explained, "the jury could only speculate that the first incident occurred early enough in June to satisfy the 90-day requirement expiring on September 17, 2004. [Moreover], there was no evidence as to when defendant abused her in September, including whether the abuse occurred before and/or after her birthday. As defendant correctly argues, although there was ample evidence that at least three qualifying sexual offenses occurred during the charging period, there was no substantial evidence that at least three months elapsed between the first and third offenses committed against her as a 13 year old." (Id. at p. 95)
Thus, the issue in Mejia was not whether there was contradictory evidence regarding the date on which the defendant's sexual abuse of his victim had commenced; it was whether or not there was any evidence related to that date. That is not the case here. We consequently reject Paz's contention that the evidence before us was insufficient to support the jury's determination that Doe was 10 years of age or younger when he engaged in the acts of oral copulation charged in counts 1-3. The jury was entitled to wade through Doe's various age estimates and conclude that her claim of being 10 years old or younger was credible. We do not question a jury's assessment of credibility.
2. Sufficiency of the Evidence to Establish Force or Duress in Connection with Rape Counts
Paz next challenges the sufficiency of the evidence to support the jury's findings that he accomplished his two charged acts of raping Doe (counts 5 and 6) by use of duress. He argues that in the absence of a "'"direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities,"'" there is no actionable duress. (Citing People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321.) That may be true. We nonetheless conclude the evidence in this case was sufficient to support a finding that Paz engaged in duress.
Because duress involves psychological coercion, it "can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] 'Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim' is relevant to the existence of duress." (People v. Schulz (1992) 2 Cal.App.4th 999, 1005; People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235.) "'Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family.'" (People v. Veale (2008) 160 Cal.App.4th 40, 46.) As stated in People v. Senior (1992) 3 Cal.App.4th 765, 775, "[a] simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition."
When there is such evidence, "'[i]t was for the jury to determine whether a reasonable adolescent in [the victim's] position would have been coerced.'" (People v. Leal (2004) 33 Cal.4th 999, 1010.) When reviewing a claim that the evidence is insufficient, our role is limited. "'[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) "An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.)
Here, the evidence was sufficient to support the implied finding of duress in connection with the rape counts. Paz was Doe's stepfather—a position of authority and dominance—and he began molesting her when she was approximately 10 years old. Paz told Doe "very bad things can happen" if she told her mother what he was doing to her. Doe testified she was afraid of Paz, and she said she did not verbally protest when he raped her because she feared he might do something to her mother based on prior stories he had told. Doe also testified Paz physically controlled her during the first rape, and he persisted despite her attempts to push him away. (See People v. Senior, supra, 3 Cal.App.4th at p. 775 [noting that a defendant's persistence in response to the victim's attempt to pull away "suggested that greater physical resistance would be answered with greater physical force"].)
Doe explained she was still acting under duress during the final rape she described, which occurred on the living room couch. She did what Paz told her to do because she "didn't want him to hurt my mom or my sister." Even so, she did not affirmatively assist Paz, and he had to pull down her pants. When he penetrated her vagina, she "closed [her] eyes [¶] . . . [¶] [b]ecause it hurt."
All of this constituted substantial evidence of duress. We consequently reject Paz's challenge to the sufficiency of the evidence supporting the finding of duress in connection with counts 5 and 6.
3. The Admission of Hearsay Evidence to Establish Paz's Age
Paz next asserts the court abused its discretion by admitting hearsay evidence to establish his age—an element of the crimes charged in counts 1-3 (requiring that he be at least 18 years of age when he committed the crimes) and in counts 5-7 (requiring that his victim be at least seven years younger than he).
The evidence of Paz's birthdate was admitted through the testimony of the sheriff's deputy who booked him into the jail. That deputy testified about the need to accurately determine the age of a person being booked into jail—so as to ensure the person is not a minor—and also listed the approved sources (including the person's own statement, his driver's license, and a government database) that can be used to ascertain and verify the person's birthdate. The booking deputy confirmed he verified Paz's name and date of birth through one of the approved sources (although he did not recall the specific source he had relied upon); he said he would have filled in Paz's birthdate on the report while his memory was fresh.
Earlier in the trial, the prosecutor made other efforts to establish Paz's birthdate. He first asked Sergeant Jasper, who initially interviewed Paz, for his date of birth. Jasper responded "January 25th of 1984," just as Paz's counsel objected, citing lack of foundation. The court sustained the objection "[p]ending foundation." When Jasper acknowledged he did not recall how he had learned Paz's date of birth, the court struck his answer. The prosecutor then sought to admit a certified "domestic violence court packet," which included Paz's birthdate on pages signed by him. The court sustained Paz's objection that the packet was more prejudicial than probative. In making that ruling, the court stated, "I think the jury can look at somebody and judge age."
The prosecutor then asked for Paz's date of birth, and the deputy responded he would have to look at the report to refresh his memory. The court agreed he could "review it if it helps . . . your recollection." After doing so, the deputy stated, "Thank you, your honor. 1/25/84."
Paz's counsel objected, citing lack of foundation, and moved to strike the answer. The objection was overruled.
Paz now argues the evidence was insufficient to establish the deputy learned his age from a source that was not hearsay, and thus claims the court should have excluded his testimony as hearsay. As the Attorney General points out, Paz did not object to the deputy's testimony on hearsay grounds; only lack of foundation. We cannot disturb the jury's verdict, or reverse the judgment, based on the erroneous admission of evidence unless the record demonstrates the evidence was objected to at trial on a "specific ground," and that it should have been excluded "on the ground stated . . . ." (Evid. Code, § 353, subds. (a), (b); People v. Partida (2005) 37 Cal.4th 428, 435 [if an objection is overruled "the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial"].)
Anticipating that waiver claim, Paz attempts to portray his lack of foundation objection as having stated the claim of inadmissible hearsay. According to Paz, it was clear to both the court and the prosecutor that "implicit in that objection was the reason foundation was required; i.e., the prosecution's failure to establish an exception to the hearsay rule." But in support of that argument, Paz points to other instances in which he contends the court interpreted his "lack of foundation" objection as a challenge to the "trustworthiness" or "accuracy" of a piece of evidence. That contention undermines his assertion. While the accuracy and trustworthiness of evidence is certainly a policy concern that underlies the hearsay rule, and thus informs the statutory exceptions to the rule, it does not follow that a challenge to accuracy would always constitute a hearsay objection.
Indeed, if as Paz contends, the court understood his "lack of foundation" objection as a challenge to the accuracy of the birthdate recalled by the booking deputy, that may explain why the court overruled that objection. The deputy's description of the booking procedures and the limited sources of information that can be relied upon in determining the birthdate of a person being booked, suggest the reliability of the information he had gleaned. Had Paz instead objected on the basis that the information, no matter how apparently reliable, was nonetheless inadmissible hearsay, the court's ruling might well have been different. We consequently conclude the hearsay objection was waived.
We also reject Paz's alternative contention that he is entitled to relief on the basis his counsel was ineffective for failing to assert the hearsay objection. In order to prevail on such a claim, Paz must prove not only that his counsel's performance fell below an objective standard of reasonableness, but also that the mistake was prejudicial. (People v. Centeno (2014) 60 Cal.4th 659, 674.) Prejudice is established by showing there is a "'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" (Id. at p. 676.) Paz has made no such showing here.
The prosecutor was not required to prove Paz's precise age in connection with any of the crimes charged against him—only that he was 18 or older at the time of the oral copulation crimes charged in counts 1-3, and that he was at least seven years older than Doe for purposes of the crimes charged in counts 5-7. As the Attorney General points out, the jury was entitled to rely on its own observations of Paz during the trial to ascertain his approximate age. (Citing People v. Montalvo (1971) 4 Cal.3d 328, 335 ["a view of the defendant by the trier of fact in an appropriate case may be sufficient to support a finding that the defendant is an adult"]; and (People v. Castaneda (1994) 31 Cal.App.4th 197, 204 ["In all jurisdictions, the defendant's presence, subject to the jury's view is relevant, circumstantial evidence of age"].)
That option was significant in this case because in addition to the deputy's testimony of Paz's birthdate, establishing he was actually 17 and a half years older than Doe, it was apparent that he appeared to be in that age range. We know that because the trial court commented on it when it refused to admit the certified domestic violence packet as a means of establishing Paz's birthdate. In ruling that evidence was substantially more prejudicial than probative pursuant to Evidence Code section 352, the court assessed its probative value by first acknowledging that Paz's age was a required element of some of the crimes and also that the prosecution was having difficulty establishing his birthdate. But the court then countered those concerns with the observation that "I think the jury can look at somebody and judge age," implying that such a look might well establish Paz's approximate age.
We also know that Paz became Doe's de facto stepfather when she was about seven years old, and that the incidents of oral copulation occurred at the earliest when Doe was about eight and a half years old, and at the latest when she was 10—hence when Paz had already been her stepfather for between 1 and 3 years. We think it likely the jury would infer Paz would have been older than sixteen or seventeen when he moved in with Doe's mother and assumed the role of stepfather to her children. In People v. Castaneda, supra, 31 Cal.App.4th at p. 203, this court concluded that similar evidence—i.e., that the defendant presented as an adult and began living with the victim's mother when the victim was five, assuming the role of her stepfather—combined with his appearance at trial before the jury—was sufficient to support the jury's conclusion that he was at least 10 years older than his victim.
As Paz correctly points out, such evidence would not be conclusive. It is theoretically possible that a 16-year-old boy could enter into a romantic, live-in relationship with an older single mother, take on the role of stepfather to her young children, and then get legal permission to marry her before even reaching the age of majority. But a determination of prejudice for purposes of assessing a claim of ineffective assistance of counsel does not require that we rule out even the barest possibility of any contrary finding. We need only determine whether Paz has demonstrated a reasonable probability that the outcome would have been different in the absence of the evidence establishing his birthdate. We conclude he has not.
At the time of trial, Paz was nearly 34 years old. There is no evidence in our record to suggest Paz was so youthful looking that the jury would have suspected he was a decade younger than his actual age. And when we consider the fact that the only information we do have that bears on the point is the trial court's comment suggesting the jury would be able to assess Paz's age by looking at him, we conclude Paz has failed to demonstrate prejudice.
Apart from the deputy's challenged testimony at trial, the Information contained in our record reflects that Paz's birthdate was January 25, 1984.
4. Admission of Paz's Interview into Evidence
Paz also contends the court abused its discretion by admitting into evidence the transcript of his curbside interview with Sergeant Jasper, which took place outside an elementary school on the day Doe reported that he had sexually abused her. Paz asserts that when viewed under the totality of the circumstances, the manner in which Jasper interrogated him must be viewed as custodial, thus triggering Jasper's obligation to advise him of his Miranda rights. (See People v. Bejasa (2012) 205 Cal.App.4th 26, 36-40, 42 [concluding that an officer's failure to give a Miranda admonition before interrogation of the defendant during a custodial traffic stop required the exclusion of the defendant's statements].)
The trial court found that although Jasper's questioning of Paz amounted to an interrogation, Paz made his statements voluntarily, and that a reasonable person in his position would not have believed he was under arrest. The court pointed to the fact that Paz was "given the Beh[e]ler admonition," meaning he had been expressly advised by Jasper that he was free to leave and the very public setting of the interview as justification for its conclusion.
California v. Beheler (1983) 463 U.S. 1121, 103 S.Ct. 3517. As explained in People v. Torres (2018) 25 Cal.App.5th 162, 174 (Torres), when police advise a person being questioned "that he was not under arrest, was free to leave, and was not required to speak to them[, those advisements] are sometimes known as "'Beheler admonishment[s].'""
"When reviewing a trial court's determination that a defendant did not undergo custodial interrogation, an appellate court must 'apply a deferential substantial evidence standard' [citation] to the trial court's factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, 'a reasonable person in [the] defendant's position would have felt free to end the questioning and leave.'" (People v. Leonard (2007) 40 Cal.4th 1370, 1400.) Applying those standards, we conclude the trial court correctly determined that a reasonable person in Paz's position would not believe he was under arrest during his interrogation.
Both parties agree that the totality of the circumstances test applies in determining whether an interrogation qualifies as custodial for purposes of triggering the requirement of a Miranda warning. The factors to be considered under that test include: "whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person's conduct indicated an awareness of such freedom; whether there were restrictions on the person's freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation." (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.) However, "[n]o one factor is dispositive. Rather, we look at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest." (Ibid.)
In arguing this interrogation was custodial, Paz suggests that because he was at the school waiting to pick up his wife's children, he was unable to leave due to concerns about the children's welfare. But the unspoken premise of that assertion is that Paz had no right to remain in that public area near the school if he were not participating in the interrogation. That is not the case. Paz also claims that he felt coerced to stay because he had "heightened anxiety about his wife being subject to arrest." He concedes, however, that "the officers said they were not there for his wife." As the interrogation commenced, the officers did not ask Paz any questions concerning possible charges against his wife—making clear instead that their focus was his own conduct toward Doe—so even if we assume it might have been reasonable for Paz to be motivated by that concern at the beginning of the conversation, we cannot conclude that a reasonable person in his position would have continued to engage in the interrogation beyond the first few minutes, based on any concern about his wife's potential arrest.
Paz suggests that a reasonable person in his position would not have felt free to leave because Jasper had told him he knew that Paz "had committed acts of oral copulation, vaginal intercourse, and sodomy and that the only issue was whether he had used force." He cites People v. Saldana (2018) 19 Cal.App.5th 432, 458, as authority for the proposition that "'"[t]he awareness of the person being questioned by an officer that . . . the police have ample cause to arrest him, may well lead him to conclude, as a reasonable person, that he is not free to leave, and that he has been significantly deprived of his freedom . . . ."'" But the argument is unpersuasive here because the transcript of the interview makes clear that Paz did not seem to realize that engaging in sex acts with his young stepdaughter was illegal (as opposed to perhaps immoral) if he did not force her to participate. At one point, Paz protested to Jasper that he would not have engaged in force because "the law here, nobody forces anybody to do things."
Paz also claims, in somewhat conclusory terms, that Jasper "used coercive tactics by lying about medical testing and use of force claims and evidence," but he does not point to any specific part of the transcript to support that claim. Nor does he explain how those tactics would have made a reasonable person believe he was effectively under arrest during this particular interrogation.
Finally, Paz contends that "even though Jasper characterized the conclusion of the interview as [him] telling Paz he was free to leave, [citation], the recorded interview actually reflects that [the translator's] translation to Paz suggested in a backhanded way that he stick around, stay there, other than go the few feet to pick up the kids, while Jasper was on the phone with his supervisor." Even if that were true—and we make no such finding— the allegedly misleading advisement came after Paz had already made his incriminating statements. It cannot be relied upon to retroactively establish that Paz had been coerced into making those earlier statements. Indeed, what is more significant to us is that Paz does not contend that any of the earlier advisements given to him by Jasper during the interrogation, reaffirming that Paz was not under arrest and was not required to answer questions, were similarly misleading.
Instead Paz argues in his reply brief that the trial court placed undue emphasis on the fact that Paz was repeatedly advised that he was not under arrest and was free to leave. In support of that claim, Paz relies on Torres, supra, 25 Cal.App.5th at p. 174, for the proposition that "It has never been the law that a police officer can insulate an otherwise clearly custodial interrogation from Miranda's reach simply by telling a suspect that he or she is 'not under arrest.'" We agree with his proposition but reject the implication that occurred in this case.
In determining the interrogation there was custodial, the Torres court considered that it had taken place inside the detectives' car with the doors closed—a location over which they had exclusive control. The court pointed out that "[a]s noted in Miranda, being alone with the person under interrogation is 'the "principal psychological factor contributing to a successful interrogation.'"" (Torres, supra, 25 Cal.App.5th at p. 176.) That was not the case here where Paz was questioned in an open public space.
The Torres court also noted that the police had initially misled the defendant about why he was being interrogated, failing to correct his expressed belief that they wished to talk about the fact he had urinated in the yard of the family he had been living with. No similar misdirection happened here. When Paz expressed his initial concern that Jasper's proposed questioning would pertain to his wife's warrant, Jasper immediately assured him it did not and began asking him about Doe.
And once the interview in Torres turned to issues of potential child molestation, the detectives controlled the course of the interrogation and used techniques designed to pressure Torres into confessing—perhaps even falsely—including telling Torres about false evidence and asking him confrontational and accusatory leading questions. As the Torres court described it, the detectives employed "interrogation techniques [that] placed Torres in a hopeless position—[telling him] the police had evidence that [his victim] was not lying, that he had touched [her] vagina and he needed to have the courage to admit his mistake or the judge would think he was a liar and an animal." (Torres, supra, 25 Cal.App.5th at p. 178.) No such pressure tactics were employed here.
To the contrary, Paz confessed his crimes fairly readily in this case. There was no occasion for Jasper to engage in aggressive, confrontational accusations or to subject Paz to any significant pressure. Paz submitted voluntarily to Jasper's questioning, and he continued to do so even after it was made clear to him what the subject matter of the interview would be. Jasper advised Paz not just once, but several times during the course of the interview, that he was not under arrest, was free to leave, and did not have to answer his questions. And still Paz continued to talk. The interview took place in an outdoor, public place at a time when there would have been other people around to collect their children from school. It is difficult to think of any other interview location that might have been less inherently coercive.
In light of all those factors, we agree with the trial court that a reasonable person in Paz's position would not have concluded he was effectively under arrest during Paz's curbside interrogation. We consequently find no error in its ruling admitting into evidence the statements Paz made during that interview.
5. Duty to Instruct on Lesser Included Offense of Unlawful Sexual Intercourse
Paz's final contention is that the trial court violated its sua sponte duty to instruct the jury on the lesser included offense of unlawful sexual intercourse (§ 261.5, subd. (c)) in connection with counts 5 and 6. (See People v. Manriquez (2005) 37 Cal.4th 547, 584 ["A trial court must instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense"].) The duty is triggered when there is "'"evidence from which a jury composed of reasonable [persons] could . . . conclude [ ]"' that the lesser offense, but not the greater, was committed." (People v. Breverman (1998) 19 Cal.4th 142, 162.)
In claiming there is substantial evidence to support the lesser charge, Paz relies on his own statement, made during his interrogation, that he had intercourse with Doe at her own behest, because she wanted "experience." He also argues the other evidence suggesting he had employed force or duress in connection with the two incidents of rape is so slight that a reasonable juror might have concluded that he was guilty of only unlawful sexual intercourse in those two incidents. We cannot agree.
Paz's claim that he had sex with Doe only because she wanted him to teach her about intercourse is belied by, among other things, the fact he never made any such claim when Doe implored him, during one of their phone calls, to "[p]romise me that you won't have sex with me anymore?" Nor did he offer that obvious response when Doe later asked him, repeatedly, "why did you do it?" Based on the totality of the evidence, we conclude that no reasonable juror would have believed Paz's claim.
Nor are we persuaded by Paz's characterization of the duress evidence. The flaw in Paz's argument is that he attempts to isolate each rape incident, and focus on the existence of force or duress evidence relating to that single incident as though Doe would be unaffected by the duress he had employed to make her comply with his earlier sexual demands. The record here makes clear that Doe was affected by Paz's threat of "bad things" that would happen if she told anyone of the oral copulation and that she continued to comply with Paz's sexual demands because she was afraid of the consequences if she did not.
Indeed, with respect to the final incident, Doe stated explicitly she had complied with Paz's demand that she lie on the couch, and thereafter allowed him to engage in intercourse with her—even though it hurt—only because she feared he would hurt her mom or her sister. As for the earlier incident, in the closet, Doe testified that she actually tried to push Paz away, but she could not. Doe's testimony is inconsistent with the conclusion that she voluntarily complied with Paz's demands for intercourse. We do not believe any reasonable juror would conclude, based on that evidence, that Paz was guilty of only the lesser offense.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.