Opinion
G055876
10-07-2019
THE PEOPLE, Plaintiff and Respondent, v. HERMINIO RODRIGUEZ, Defendant and Appellant.
Christine Vento, 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, Eric A. Swenson and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CF2775) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Christine Vento, 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, Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Herminio Rodriguez on four counts of committing lewd acts upon or with a child under the age of 14 and one count of oral copulation of a child 10 years of age or younger. (Pen. Code, §§ 288, subd. (a), 288.7, subd. (b).) Rodriguez appeals the convictions, contending the trial court erroneously denied his motion to exclude statements he made to a police officer because his waiver of Miranda rights had not been knowingly and intelligently made. We find the court's ruling supported by substantial evidence and that Rodriguez's waiver was valid. We affirm the judgment.
All further undesignated statutory references are to the Penal Code.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
I
FACTS AND PROCEDURAL HISTORY
In 2015, then 11-year-old victim A. reported to a school counselor that, two years earlier, her grandfather, Rodriguez, had molested her on multiple occasions when she had been living at his residence along with her mother and siblings. Based upon A.'s allegations, Officer Isaac Ibarra of the Santa Ana Police Department arrested Rodriguez at his home and transported him to a police station about 15 minutes away. At the station, dressed in his regular police uniform and without any weapons, Ibarra entered an interview room and conducted an audio recorded interview of Rodriguez, while he was handcuffed. A. Police Interview of Rodriguez
At the beginning of the interview, Rodriguez affirmed he was originally from El Salvador. Officer Ibarra advised Rodriguez of his Miranda rights in Rodriguez's native language of Spanish. The following exchange occurred, as translated:
"OFFICER IBARRA: . . . Okay. Before we talk about what -- the reason that we are here, I have to read you something, okay?
"RODRIGUEZ: Okay.
"OFFICER IBARRA: You are going to tell me yes or no, if you understand. Okay. 'You have the right not to say anything.' Do you understand?
"RODRIGUEZ: Um-hmm.
"OFFICER IBARRA: You have to say yes or no.
"RODRIGUEZ: [Pause] Yes.
"OFFICER IBARRA: Yes. 'What you say today may be used against you in court.' Do you understand?
"RODRIGUEZ: Um-hmm.
"OFFICER IBARRA: Oh. You have to say yes or no. Because 'um-hmm' . . . I don't know what that is.
"RODRIGUEZ: Oh. Uh . . . yes. [Stuttering] . . . .
"OFFICER IBARRA: Should I read it again?
"RODRIGUEZ: Yes, please
"OFFICER IBARRA: Because -- And I know that 'um-hmm' means yes . . . .
"RODRIGUEZ: Yes.
"OFFICER IBARRA: . . . [B]ut you have to tell me yes or no. Because that doesn't count, if you just say 'um-hmm'. [sic] Okay? I will read it to you again. Okay? Tell me yes or no. 'What you say today may be used . . . against you in court.' Do you understand?
"RODRIGUEZ: Yes.
"OFFICER IBARRA: Okay. 'You have the right to an attorney before and during any questioning.' Do you understand?
"RODRIGUEZ: Yes.
"OFFICER IBARRA: 'If you do not have money to pay for an attorney one would be appointed for you before any questioning if you wish.' Do you understand?
"RODRIGUEZ: Yes.
"OFFICER IBARRA: Okay. Okay. Let's . . . talk about what . . . [Stuttering] . . . about the reason that we are here.
"RODRIGUEZ: Um-hmm.
"OFFICER IBARRA: Do you want to talk about that?
"RODRIGUEZ: Yes."
The following is a summary of relevant communications between Officer Ibarra and Rodriguez, translated from Spanish to English, which occurred over the course of approximately 20 minutes. When Ibarra asked what had happened between A. and Rodriguez in his room two years prior, Rodriguez stated "nothing" had happened and that he and A. always watched television together. Rodriguez initially said he didn't know why A. was "traumatized," but then identified a man named Manuel as the source. According to Rodriguez, when Manuel had previously lived at Rodriguez's residence, Manuel would "touch" A. When A.'s mother became aware of Manuel's conduct, Rodriguez kicked Manuel out of the residence.
When Officer Ibarra confronted Rodriguez with allegations that the same conduct that Manuel had engaged in had occurred between Rodriguez and A., Rodriguez initially denied it, saying: "No, not with me. [T]here wasn't anything." After further conversation, Rodriguez offered that perhaps by being hugged, an individual could think they were being touched inappropriately. When he was confronted with allegations about interactions with A. other than hugging, Rodriguez denied them. When Ibarra asked if A. was lying, Rodriguez indicated that he had sometimes kissed A. and her siblings on the forehead. When Ibarra asked questions about A.'s state of undress, Rodriguez initially claimed A. never took off her pants, then that he did not recall pulling her pants down, and then that he could not recall. Ibarra stated he did not want Rodriguez to lie and Rodriguez responded: "No, sir officer, I'm not . . . I'm not lying to you."
After some colloquy, Rodriguez stated he thought there had been a "misunderstanding." Rodriguez admitted he had touched A. but claimed he had been "joking around with her" and that A. had "pulled up her pants quickly." Rodriguez stated that he thought A. had pulled down her own pants and shown him her vagina as a joke. When Officer Ibarra asserted that Rodriguez had grabbed A.'s vagina as a joke, Rodriguez provided a nonverbal response of "Um-hmm."
Later in the interview, after initially denying kissing A.'s vagina, Rodriguez admitted he had kissed A.'s vagina, but stated this also had been a joke. Rodriguez initially stated he had done so when A.'s pants had been up. But when Officer Ibarra asserted her pants had been down, Rodriguez provided another nonverbal response of "Um-hmm." Rodriguez stated A. had always pulled her pants down herself and believed she did so because it was a bad habit she had developed because of Manuel. Rodriguez stated that A. liked to be touched.
Subsequently, Rodriguez stated that A. had pulled down her pants in front of him on about two occasions and he had kissed A.'s vagina once. At the end of the interview, Rodriguez asked if he was going to be leaving the police station. Officer Ibarra responded that Rodriguez was going to jail and would eventually see a judge who would determine what would happen next. Rodriguez stated: "I have to work tomorrow."
B. Motion to Exclude Interview Statements
Prior to trial, Rodriguez moved to exclude his interview statements under Evidence Code section 402. At the motion hearing, Officer Ibarra testified he was a department certified Spanish speaker and that his advisement of Miranda rights to Rodriguez was based upon a department issued card printed in Spanish. Ibarra opined that Rodriguez had understood Ibarra's interview questions. Ibarra testified that, prior to answering questions specific to A.'s allegations, Rodriguez had confirmed his understanding of each Miranda advisement and then affirmed he wanted to talk about the reason he was at the police station. Ibarra testified that at no point did Rodriguez ask for an attorney or request that questioning cease. C. Dr. Gomez's Expert Testimony
Rodriguez made two motions in limine to exclude his statements. The first was an oral motion made when the parties believed the audio recording of the interview had been lost. The trial court ruled evidence of Rodriguez's statements could be admitted as evidence at trial. Subsequently, Officer Ibarra located the recording, which was made available to Rodriguez. Trial was continued and defense counsel subsequently filed a written motion in limine based upon the recording. The court's denial of the second written motion is the basis of Rodriguez's appeal.
In support of his motion to exclude his interview statements, Rodriguez presented testimony by neuropsychologist Dr. Francisco Gomez, Ph.D. Gomez had performed a forensic evaluation of Rodriguez which included two discussions with Rodriguez, totaling five hours, in 2017. Gomez opined that Rodriguez was able to only "minimally" understand Miranda advisements when Gomez explained them. Gomez said Rodriguez had oftentimes said "yes" before Gomez had finished a question and had "missed" some questions when Gomez tried to verify Rodriguez's understanding of his informed consent to the evaluation.
Dr. Gomez did not diagnose Rodriguez as having any mental illness, but did diagnose him with "borderline intellectual functioning" and "mild neurocognitive impairment." Gomez opined that Rodriguez did not effectively waive his Miranda rights due to a combination of low I.Q., low processing speed, low acculturation, and insufficient reading comprehension. Gomez testified that Rodriguez's "cognitive abilities" and "ability to understand verbal information" were respectively at third or fourth grade levels. Gomez opined that an individual's comprehension capacity needed to be at least equivalent to a seventh grade level to understand Miranda rights. As bases for his opinion, Gomez identified what he called a "Frye analysis" and "studies that have been done," mainly "by [an individual named] Rogers."
It is unclear what analysis Dr. Gomez was referring to, including whether it was related to the well-established "Kelly/Frye" standard regarding the admissibility of evidence dealing with "new scientific techniques." (People v. Leahy (1994) 8 Cal.4th 587, 605.) We find no cross-reference in the appellate record and the issue is not discussed in the parties' briefs.
Dr. Gomez testified Rodriguez was 67 years at the time of evaluation and had immigrated to the United States approximately 20 years prior, thereafter working for 18 years on an assembly line at an electronics firm. Rodriguez had grown up in poverty and spoke Spanish but not English. Rodriguez had never previously been arrested and was "not familiar at all with the legal system" prior to his interview by Officer Ibarra. Gomez described Rodriguez as having a low level of acculturation. Gomez opined that Rodriguez was "at risk" of being vulnerable to suggestibility.
Dr. Gomez opined that Rodriguez had simply acquiesced to Officer Ibarra instead of actually understanding his waiver of rights. Gomez testified he was bilingual in English and Spanish and challenged the English translation for one point of the interview as failing to capture the directive nature of the officer's statement. Gomez did agree, however, that it appeared Rodriguez understood Ibarra's Spanish and was able to say "no" to and corrected Ibarra on certain points. Gomez opined that Rodriguez's stuttering, several "hum['s]" and pauses during the interview, as well as Rodriguez's explicit statement that he needed to go to work the next day, demonstrated his lack of understanding of what was happening.
Dr. Gomez testified that, based upon testing, Rodriguez had not been in the range of malingering when he was evaluated. Gomez estimated Rodriguez's I.Q. as being between 71 and 75, and 69 on a test specific for Spanish speakers from Central America. Gomez testified Rodriguez's I.Q. for processing speed was particularly low at 59—describing it as being in the "severely impaired range"—lowering his overall I.Q. score.
Dr. Gomez testified that as a consequence of low processing speed, affected persons generally tended to give a "yes" response to a "yes or no" question, even if they were not certain of their answer. Gomez opined that Rodriguez's quick responses of "yes" to Officer's Ibarra's Miranda advisements regarding Rodriguez's right to an attorney could not have been given with sufficient understanding because Rodriguez had responded "right away." Gomez testified about what he called "over-learned information"—like a person's own phone number—as an explanation of why Rodriguez's response times for some questions could be quick despite his slow processing speed. D. Trial Court Ruling and Conviction by Jury
The trial court denied Rodriguez's motion to exclude his interview statements. Prior to oral argument on the motion, the court gave a tentative ruling, finding that law enforcement had not made any threats or promises and that Rodriguez had not seemed confused during the interview. The court stated that, even though "[a] little confusion" existed at the beginning of Officer Ibarra's Miranda advisements, it had been "cleared up." Regarding Dr. Gomez's testimony, the court found that Rodriguez's I.Q. scores were higher than scores reported in other cases where Miranda waivers had been found valid. After oral argument, the court stated that Rodriguez had not been coerced into making his statements.
At trial, the prosecution played the audio recording of the interview for the jury and provided its transcript as well. The jury found Rodriguez guilty of four counts of committing lewd acts upon or with a child under the age of 14 and one count of oral copulation of a child 10 years of age or younger. (§§ 288, subd. (a), 288.7, subd. (b).) The court sentenced Rodriguez to a total term of 15 years to life in state prison, composed of concurrent terms of 6 years (the midterm) on each of the first four counts and 15 years to life on the last count.
II
DISCUSSION
Rodriguez contends that "the facts in this case do not support that [he] knowingly and intelligently waived his constitutional rights pursuant to Miranda." A. Standard of Review and Relevant Law Under Miranda
"In Miranda, the court laid down a rule of a 'prophylactic' nature [citation] in order to protect the privilege against self-incrimination of the Fifth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteenth Amendment: '[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant [by law enforcement officers] unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. . . . Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. . . .'" (People v. Waidla (2000) 22 Cal.4th 690, 726-727, quoting Miranda v. Arizona (1966) 384 U.S. 436; Michigan v. Tucker (1974) 417 U.S. 433, 446.) Miranda rights represent a "balance between society's legitimate law enforcement interests and the protection of [a] defendant's Fifth Amendment rights." (Moran v. Burbine (1986) 475 U.S. 412, 424.)
"To establish a valid waiver of Miranda rights, the prosecution must show by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary." (People v. Nelson (2012) 53 Cal.4th 367, 374-375.) "'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.'" (People v. Combs, supra, 34 Cal.4th at p. 845.)
"[W]hether a particular defendant understood and knowingly waived his rights is essentially a factual question, which we review only for substantial evidence." (See People v. Jenkins (2004) 122 Cal.App.4th 1160, 1173, fn. 2.) Specifically, "'"we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence."'" (People v. Enraca (2012) 53 Cal.4th 735, 753.) With regard to a proffered expert opinion, "the weight to be given such opinion is a question for the trier of fact." (People ex rel. Department of Public Works v. Rice (1960) 185 Cal.App.2d 207, 213.) That is, "[t]he fact finder determines the facts, not the experts. Indeed, the fact finder may reject even 'a unanimity of expert opinion.'" (In re Scott (2003) 29 Cal.4th 783, 823.)
We review a trial court's ruling for its correctness and not necessarily its reasoning (People v. Zapien (1993) 4 Cal.4th 929, 976), based upon the court's findings, express and implied. (See People v. Weaver (2001) 26 Cal.4th 876, 920-921 [analogizing to Miranda analysis a review for substantial evidence to support an implied finding regarding voluntariness of confession under the Fourteenth Amendment to the federal Constitution and Article I of the California Constitution].) The appellant bears the initial burden of demonstrating reversible error. (People v. Alvarez (1996) 49 Cal.App.4th 679, 694.)
Finally, "'"[w]e independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained."'" (People v. Enraca, supra, 53 Cal.4th at p. 753.) B. Substantial Evidence of Knowing and Intelligent Waiver
The trial court's denial of Rodriguez's motion to exclude his interview statements reflects the court's conclusion that the prosecution proved by a preponderance of the evidence that Rodriguez had possessed "'the requisite level of comprehension'" to waive his Miranda rights. (People v. Combs, supra, 34 Cal.4th at p. 845.) This implicit conclusion is inferred by the court's express findings that the record regarding Rodriguez's interview showed "[a] little confusion at the very beginning about the Miranda rights" which was sufficiently "cleared up" and that Rodriguez had not seemed "befuddled or confused." Substantial evidence supports the findings.
The undisputed evidence was that Officer Ibarra had communicated, in Spanish, the required Miranda advisements to Rodriguez, who expressly confirmed his understanding of each of the advisements before discussing the allegations against him with Ibarra. Regarding the advisement about using Rodriguez's own statements against him in court, when Rodriguez communicated his desire for Ibarra to repeat the advisement, Ibarra clearly did so prior to Rodriguez expressly confirming his understanding of the advisement. Once an understanding of all advisements had been confirmed, Ibarra plainly asked, "Do you want to talk about that[, i.e., the reason that the officer and Rodriguez were at the police station]?" Rodriguez plainly responded: "Yes." This exchange of communications suffices as substantial evidence of a valid waiver of Miranda rights. (See North Carolina v. Butler (1979) 441 U.S. 369, 371-373 [holding defendant's statement "'I will talk to you but I am not signing any form'" constituted valid implied waiver].)
Dr. Gomez's proffered expert testimony does not alter our finding of substantial evidence supporting the trial court's factual findings. The court had the authority to not accept the proffered testimony and the record shows grounds upon which the court could have discounted it. For example, Gomez testified that, during his evaluation of Rodriguez, Gomez did not find Rodriguez to be deceptive or manipulative in any way. However, Rodriguez's recorded interview conduct directly contradicted the inference asserted by such testimony. At multiple points during the interview, Rodriguez attempted to manipulate facts to offer Manuel as the source of A.'s traumatization and purported "bad habit," as discussed above. Even after Rodriguez subsequently admitted to culpable misconduct—which he initially attempted to deceive Officer Ibarra about by denying it—Rodriguez yet again attempted to manipulate facts by minimizing the nature of his conduct by claiming he had just been joking, that it had occurred in the presence of A.'s siblings, and that A. had liked being touched.
The trial court's ruling reflects that Dr. Gomez's testimony was found to be outweighed by Rodriguez's objective conduct and Officer Ibarra's testimony. (See People ex rel. Department of Public Works v. Rice, supra, 185 Cal.App.2d at p. 213 [weight to be given expert opinion is for the trier of fact to determine].) Regarding Gomez's opinions about Rodriguez's low processing speed and insufficient reading comprehension, Rodriguez does not assert any contentions specific to the court's implicit rejection of Gomez's opinions on those points. In sum, Gomez's testimony does not change our conclusion that substantial evidence supports the court's implicit factual conclusion that—based upon the "'"totality of the circumstances"'" (People v. Combs, supra, 34 Cal.4th at p. 845), "'including the background, experience, and conduct of the accused'" (North Carolina v. Butler, supra, 441 U.S. at pp. 374-375), Rodriguez had possessed "'the requisite level of comprehension'" to knowingly and intelligently waive his Miranda rights. (Combs, at p. 845.) C. Independent Review of Waiver
We also independently review the record and hold that Rodriguez's waiver of Miranda rights was valid. No controlling authority we have reviewed compels a conclusion that the totality of circumstances presented shows Rodriguez unknowingly or unintelligently waived his Miranda rights. Notwithstanding his background and lack of experience with the criminal justice system, Rodriguez's objective conduct during his interview with Officer Ibarra supports a conclusion that he knowingly and intelligently waived his Miranda rights.
Dr. Gomez's proffered expert testimony does not persuade us otherwise. With respect to his opinion that it had been impossible for Rodriguez to understand the Miranda advisements due to an insufficient reading comprehension level, there is no underlying evidence in the record to test the premises implicated by the opinion. (In re Scott, supra, 29 Cal.4th at p. 823 ["'"The chief value of an expert's testimony . . . rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion"'"].) D. Correct Analysis Under Miranda
We find no merit in Rodriguez's arguments that the trial court "incorrectly required evidence of coercion in order to hold that [his] waiver of his Miranda rights was unknowing and unintelligent." According to Rodriguez, California law erroneously demands a finding related to voluntariness (the absence of police coercion) in order to determine whether a knowing and intelligent waiver occurred. (People v. Nelson, supra, 53 Cal.4th 367, 374-375.) However, Rodriguez is mistaken. California law applies two separate prongs of analysis in examining a waiver of Miranda rights: voluntariness and awareness. (People v. Molano (2019) 7 Cal.5th 620, 648.)
Rodriguez does not persuade us that the trial court in this case conflated the two separate prongs of analysis. Although he correctly points out the court's concluding remarks at his motion hearing focused on a lack of police coercion in this case (a voluntariness factor), it is sufficiently clear the court also analyzed the evidence for knowing and intelligent waiver, independent of voluntariness. We are not persuaded by Rodriguez's contention that "the court used the wrong standard." E. No Ineffective Assistance of Counsel
As discussed above (see discussion, ante, at pt. II.B), the trial court stated Rodriguez had not seemed confused at the interview. Even though "[a] little confusion" existed at the beginning of Officer Ibarra's Miranda advisements, it had been "cleared up." Also, regarding Dr. Gomez's testimony, the court found that Rodriguez's I.Q. scores were higher than scores reported in other cases where Miranda waivers were found valid.
Finally, since we find no error in the trial court's analysis of Rodriguez's knowing and intelligent Miranda waiver, there is no need to consider his other contention that he suffered ineffective assistance of counsel based upon his trial counsel's purported failure to object to the court's analysis.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. GOETHALS, J.