Opinion
A117949
4-21-2008
THE PEOPLE, Plaintiff and Respondent, v. OSVALDO ALZAGA SANCHEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Osvaldo Alzaga Sanchez appeals from a judgment entered after a jury found him guilty of committing lewd acts upon a child under the age of 14 on three separate occasions and two acts of oral copulation and one act of sodomy of the same child. Appellants counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not file such a brief. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 30, 2007, an information was filed in Contra Costa Superior Court, alleging that appellant had committed the following offenses: lewd acts upon Jane Doe (Jane), a child under the age of 14, on December 6, 2006, July 2004 and at sometime between January and November 2006 (Pen. Code, § 288, subd. (a) ) (counts 1, 4 and 6); two acts of oral copulation of Jane on December 6, 2006 (§ 288a, subd. (c)(1)) (counts 2 and 3); and sodomy of Jane in July 2004 (§ 286, subd. (c)(1)) (count 5). A probation ineligibility enhancement under section 1203.066, subdivision (a)(8) alleged that appellant had substantial sexual conduct with Jane.
The victim was referred to at trial to protect her privacy by the pseudonym Jane Doe. Her sister was referred to by the pseudonym Jane Doe II.
All further statutory references are to the Penal Code unless otherwise indicated.
On March 22, 2007, appellant moved to exclude certain evidence at trial, including statements he made to the police. He asserted the statements were obtained in violation of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436). At a hearing on the admissibility of the statements, Detective Michael Kindorf testified that on December 5, 2006, he and another detective, Karl Cruz, went to a restaurant at which appellant was employed. Both detectives were wearing civilian clothing. Kindorf introduced himself and Cruz to appellant and asked to speak to appellant in private. He did not identify himself and Cruz as police officers at that time because he did not want to embarrass appellant in front of another employee.
Kindorf, Cruz and appellant sat down at an empty booth in a closed section of the restaurant. Appellant sat on an edge seat and had access out of the booth. Kindorf showed appellant his police badge, stated he was a detective for the Concord Police Department, and asked if he could ask some questions. Appellant replied, "yes." Kindorf did not handcuff appellant. Both detectives held their weapons in belt holsters and covered them with a coat or oversized shirt. Kindorf told appellant that he was not there to arrest him.
Kindorf testified that he spoke to appellant for 15 to 20 minutes. Appellant did not, at any point, ask if he could leave, or try to get up and walk away. Appellant appeared calm, was not agitated or upset, and the conversation was "very, very normal." Kindorf testified that he spoke to appellant in a "subdued manner," was not accusatory, and never raised his voice. He recorded the entire conversation using a digital recording device. He did not inform appellant that the conversation was being recorded.
The recorded interview was played for the court. According to a transcript of the interview, appellant said "[s]ure," when Kindorf asked if he could speak with him. Kindorf explained that Children Family Services had asked the police to conduct an investigation. Appellant stated that he went to his wifes apartment after work and slept on the couch for a few hours, from about 4 to 6 a.m. When his wife called and woke him up, he went to wake up all of the children. He first went to his oldest daughter Janes room and sat on her bed as he always does when he wakes up his children. When Jane did not wake up, he tickled her and put his fingers in her mouth. He believed Jane may have mistakenly believed that there was "inappropriate touching" because she was asleep.
Appellant and his wife had separated and were living in separate apartments.
Kindorf asked appellant, "Do you think you touched her . . . in . . . the private parts . . . in the front?" Appellant responded: "I think . . . thats what happened when she turned around." He explained it was not intentional. Kindorf asked whether he touched Jane under her underwear, and appellant responded: "Well, like I said, when I was tickling her, when she turned around . . . accidentally, uh, probably, yes I did. I—Im not . . . not saying exactly yes I did . . . probably. Its a possibility . . . ." Kindorf asked appellant what he thought of Janes statement that appellants penis was in front of her mouth. Appellant responded that he had "no idea where she [got that] from." When Kindorf informed appellant that male sperm was found on Janes shirt, appellant said he did not know where the sperm came from. Appellant said he never had sex with anyone in his wifes apartment and had possibly masturbated there just once, about three months earlier.
Kindorf testified at trial that he knew no sperm had been found on Jane Does shirt but made this statement in order to observe appellants reaction.
Kindorf then asked appellant about an incident that occurred two years ago in which appellants wife (Janes mother) became upset because she found appellant on Janes bed while Jane was sleeping. Appellant said he was on the bed but was "really far away from" Jane. Kindorf asked why an exam showed some scar tissue on Janes anus. Appellant said he did not know. At the end of the interview, Kindorf arrested appellant for child molestation. He had not intended to arrest appellant but did so because he received a "partial affirmative" response when he asked appellant whether he had touched Janes private area.
No scar tissue had been found on Janes anus.
The trial court ruled that the detectives were not required to give appellant his Miranda warnings before interviewing him because there was no custodial interrogation. Noting that the detectives told appellant that they were not there to arrest him, and that there was no showing of force or other evidence indicating that appellant was not free to leave, the trial court ruled that a reasonable person would believe he was not in custody.
Twelve jurors were selected without objection and the matter proceeded to trial. Jane, age 11 at the time of trial, said she did not want to talk about certain things and was "scared" of her father, but eventually testified. She described an incident in which her "dad put his penis in [her] butt" while lying on top of her in her bed. She described another incident in which appellant "barg[ed] in" while she was taking a shower and touched her "private part," even though she "ke[pt] ducking down so he would leave me alone."
She testified regarding a recent incident in which appellant came to her bedroom to wake her up, pulled her underwear to the side and touched and licked her "private part" between the legs. Jane said she pretended she was asleep and "acted like a mouse." Her father also put his private part on her lips and moved it around "like a Chapstick." Later, something "gooey" and "sticky and gross" came out of appellants "private part" and some of it went on her teeth. Jane "wiped [the] gooey on Eeyore [a doll]" or a blanket. Appellant went to the bathroom and washed his hands. Jane told her younger sister, Jane Doe II, what had happened. Jane Doe II told her it must have been a dream, but Jane knew it was not a dream. Jane went to school that day and told her teacher that her father had hurt her, and the police eventually arrived. Jane also told her grandmother and her mother what had happened. Her mother told her not to talk to anyone else about the incident.
No evidence of appellants sperm was found on the Eeyore doll or blanket.
Jane was removed from her mothers apartment and was interviewed by a "lady in a room with a camera." A videotape of Janes interview in which Jane describes each incident in detail, was played for the jury. Jane testified that everything she said in the videotape was true.
Jane Doe II, age 8 at the time of trial, testified that on the day of the incident, she saw her older sister Jane sitting next to her bed, shaking and crying. She asked Jane what happened, and Jane told her "the whole story" and said their father was "touching her all over the place." Jane showed Jane Doe II how their father had touched her in "the private part in front . . . here." Appellant was in the bathroom while the two talked. Jane Doe II testified that she initially did not believe Jane because Jane sometimes lies by saying she is sick, so that she will not have to go to school.
Janes grandmother testified that Jane cried and was "in a panic" as she explained that appellant " `was touching me all over and also he was putting his things in my mouth . . . I felt so sticky in my mouth and something that bothered me in my mouth, and it was awful smell. " The grandmother testified that later that day, she was at Janes mothers apartment with Jane and appellant. As Jane talked about what happened, appellant said, " `if you felt something in your mouth it was my fingers. I was trying to wake you up this way . . . . " He also explained that his hands smelled and may have been sticky because he did not wash his hands after work. He did not seem surprised about what Jane was saying and appeared calm. Throughout the conversation, Jane said "[a]lmost nothing" and "was looking at [appellant] straight to his eyes, very upset. The face was completely deformed. Anger and straight to his eyes, to me her looking at him, it was, I dont believe you daddy. You are lying. You are lying."
Janes mother testified regarding an incident in which she found appellant on Janes bed. The witness, who was still living with appellant, had left her apartment to go to work while appellant and their children were asleep. After walking down the stairs, she realized she had forgotten something and returned to the apartment. There, she found appellant lying in Janes bed, rubbing her back. The witness went "ballistic" and "crazy" and said, " `Why are you [lying] in her bed? . . . [I]ts too early for them to get up. Shes too old for that. Why are you there? " She testified that "it didnt make any sense" because appellant was sleeping when she left the apartment, and "[w]hy all of a sudden [within a few minutes] hes awake and hes [lying] on her bed rubbing her back." She testified that this incident was one of the reasons she decided to separate from appellant.
An expert for the prosecution testified regarding a series of behaviors that children typically exhibit after being sexually abused. Appellant took the stand and denied all charges against him. He recalled an incident in which he was in Janes room when Janes mother walked in and became upset. He explained that he was not lying down on the bed, but was sitting on the edge of the bed. He believed Janes mother overreacted because she works a lot of hours and does not get a lot of sleep.
The jury returned a guilty verdict on all counts and found true the probation ineligibility enhancement that appellant had substantial sexual conduct with Jane. The trial court found appellant was ineligible for probation and sentenced him to the middle term of six years for count 1, two years (one-third of the middle term) for count 4 and two years for count 6. The court stayed sentencing on counts 2, 3 and 5 and awarded appellant 159 days as credit for time served. The court ordered appellant to pay restitution to Janes mother and caretaker for counseling and similar expenses. The court further ordered appellant to register as a sex offender.
DISCUSSION
We have reviewed the entire record and conclude there are no arguable issues that warrant further briefing. We discern no error in the denial of appellants motion to exclude statements he made to detectives Kindorf and Cruz. An interrogation is custodial when "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda v. Arizona, supra, 384 U.S. at p. 444.) Reviewing courts must "apply a deferential substantial evidence standard" to the trial courts factual findings regarding the circumstances surrounding the interrogation and independently decide whether, given those circumstances, "a reasonable person in [the] defendants position would have felt free to end the questioning and leave." (People v. Ochoa (1998) 19 Cal.4th 353, 402.) The detectives told appellant they were not there to arrest him. There was no evidence of confinement or force. During the interview, appellant sat on an edge seat at a booth in a restaurant at which he was employed and had access out of the booth. He said "[s]ure," when asked whether he was willing to answer questions, and the conversation was "very, very normal," with no one raising his voice at any time. Kindorf did not handcuff appellant, and the detectives weapons were hidden from appellants view. Under the circumstances, a reasonable person would have felt free to leave. Thus, the interview did not constitute custodial interrogation.
We also note that substantial evidence supports the jurys verdict. The jury heard Janes testimony and watched a videotape of an interview in which she explained the incidents of sexual abuse in detail. In addition, her sister, mother and grandmother testified regarding the statements Jane had made to them about the abuse. Although no evidence of sperm was found, Janes testimony, which was apparently believed by the jury, was sufficient to support the conviction. (See Evid. Code, § 411 [testimony of one witness sufficient]; People v. Geonzelis (1930) 106 Cal.App. 434, 435 [conviction for lewd and lascivious acts within section 288 may be based upon uncorroborated testimony of one witness]; see also People v. Jones (1990) 51 Cal.3d 294, 314, [it is the "exclusive province of the . . . jury to determine the credibility of a witness"].)
Moreover, there was no impropriety or misconduct in closing arguments. The trial court properly instructed the jury, including on the elements of the charged offense and the burden of proof. The sentence was fully supported by the underlying facts, circumstances and record, and the denial of probation was proper in light of the jurys finding that appellant had substantial sexual conduct with Jane. (See § 1203.066 [probation shall not be granted to a defendant convicted of a violation of section 288].) Presentence credits were properly awarded and the restitution fines were supported by the law and facts. Appellant was adequately represented by counsel at all stages of the proceedings.
DISPOSITION
The judgment is affirmed.
We concur:
Siggins, J.
Jenkins, J.