Opinion
G051611
03-01-2017
THE PEOPLE, Plaintiff and Respondent, v. MAURO MORALES VENTURA, Defendant and Appellant.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13NF0162) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Deputy Attorney General, for Plaintiff and Respondent.
* * *
A jury convicted Maura Morales Ventura of child rape (Pen. Code, § 269, subd. (a)(1); all further statutory references are to this code), sodomy of a child (§§ 269, subd. (a)(3)), and five counts of lewd acts (§ 288, subd. (a)) involving substantial sexual conduct with a child under age 14 (§ 1203.066, subd. (a)(8)). The trial court sentenced defendant to 30 years to life in prison on the rape and sodomy counts, plus a consecutive aggregate term of 14 years on the other counts. Defendant argues Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) required the trial court to grant his pretrial motion to suppress statements he made to the police, and he contends the court abused its discretion in ordering him to pay more than $2,000 for a presentence report when he ignored the court's order to submit a financial declaration. As we explain, the court did not err and we therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Defendant left Mexico for California when his daughter R.V., born in 1997, was still a baby. At age four, R.V., her three older brothers, and her mother joined defendant in Anaheim. One of the brothers, Rafael, was eight years older than R.V., had been molesting her, and continued to do so the first two years after the move, touching her "private parts" under her clothes, including her vagina. The boy was removed from the home when authorities learned of the abuse.
The next year, when R.V. was seven years old and in second grade, defendant began abusing her when her mother worked nights. He rubbed her vagina under her shorts while she slept or lay in bed, touched her buttocks, touched her nipples with his mouth, and kissed her vagina and her lips. He did not put his fingers inside her vagina. The abuse continued about two times a week until it became weekly when she was nine years old.
Defendant warned R.V. not to tell anyone, that it was their "secret," and that it would hurt him if anyone found out. He told her to be quiet when he touched her and ignored her requests to "stop." On one occasion when she was nine, defendant woke her up, pulled her shorts down, and inserted his penis in her vagina. She felt a lot of pain, but he would not stop despite her pleas; she recalled seeing something come out of his penis that was "sticky," which he cleaned up with yellow napkins. He told her to go back to sleep. In a different incident, he stood behind her, pulled down her pants, and put his penis in her anus. It hurt and she tried to resist, but she could not turn around because he was too heavy.
The abuse became less frequent when she was 10 years old, but defendant occasionally touched her vagina under her clothes when she slept. He finally stopped when, at age 11, she saw a sex education video at school and told him that what he was doing to her was wrong.
R.V. acknowledged at trial that she did not reveal defendant's abuse to the therapist who treated her after her brother's abuse, either in the beginning once Rafael was out of the home or at the end when Rafael moved back in when she was 11 or 12 years old. She acknowledged she had flashbacks to Rafael's abuse that seemed real to her, but it appears they stopped before defendant started abusing her in a new residence after the family moved. The parties stipulated that R.V. had denied to social workers investigating Rafael's abuse in 2004 and 2005 that she suffered any sexual abuse at home. R.V. testified defendant convinced her not to tell the therapist or social workers about his abuse, and she was afraid her mother would not believe her.
She finally told her mother in January 2013 when she was around 15 years old because she was upset with the verbal abuse defendant inflicted on the family. She and mother confronted defendant and then mother consulted with her church elders to decide what to do.
On January 9, 2013, Anaheim Police Officers Monty Hernandez and Priscilla Owens were on routine patrol when they were dispatched to meet a social worker at defendant's home. While the social worker interviewed R.V. and her mother inside the home, Hernandez asked defendant to step outside on the front porch. Hernandez and defendant talked briefly until Hernandez realized an interpreter would be helpful. When a Spanish-speaking officer arrived, Owens went inside, and in the 10 minutes or so that Hernandez estimated he and defendant spoke through the translator, defendant disclosed he had touched R.V. inappropriately seven years earlier, including kissing her on the mouth, touching her shoulders, legs and her vagina under her clothes. But defendant denied any penetration occurred, insisted he had asked for R.V.'s forgiveness, and denied it ever happened again. A tape recording of the interview was played for the jury, with transcripts furnished for their review, but apparently neither the audiotape nor transcripts were available at the time of the pretrial suppression hearing.
The jury also reviewed a videotape of defendant's subsequent interview at the Anaheim Police Department the next day, in which he made similar statements and continued to deny any penetration occurred. Neither party introduced the videotape at the pretrial suppression hearing; the trial court knew only that defendant received Miranda warnings.
II
DISCUSSION
A. Miranda
Defendant contends the trial court erred in denying his pretrial motion to suppress statements he made in his initial contact with the police at his home, and in a subsequent interview at the police station. He acknowledges he received Miranda warnings before the second interview but asserts they were ineffective. He claims the "rinse and repeat" nature of a two-step process of custodial interviews, first without Miranda warnings and then with them, degrades Miranda's protective purpose and is inherently coercive. Defendant recognizes his attempt to suppress his statements in the second interview fails if the first interview was not custodial, so we turn to that issue, which is dispositive.
Miranda requires officers to admonish criminal suspects of certain rights, including the right to remain silent, to safeguard the Fifth Amendment's guarantee against self-incrimination. (See Miranda, supra, 384 U.S. at pp. 473-474 [listing advisement rights].) The prosecution may not use statements elicited by the police during custodial interrogations absent a valid waiver of the defendant's Miranda rights. (People v. Mickey (1991) 54 Cal.3d 612, 647-648.) But "custody" and "interrogation" are both necessary to trigger the warning requirement. "'Thus two requirements must be met before Miranda is applicable; the suspect must be in "custody," and the questioning must meet the legal definition of "interrogation."' [Citation.]" (People v. Whitfield (1996) 46 Cal.App.4th 947, 953; see People v. Ochoa (1998) 19 Cal.4th 353, 401 ["'Absent "custodial interrogation," Miranda simply does not come into play'"].)
As to custody, the Supreme Court has explained that "Miranda become[s] applicable as soon as a suspect's freedom of action is curtailed to a 'degree associated with formal arrest.'" (Berkemer v. McCarty (1984) 468 U.S. 420, 440 (Berkemer).) Whether an individual is in custody is a mixed question of law and fact. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403 (Pilster).) The appellate court defers to the trial court's findings of fact to the extent that they are supported by substantial evidence, but independently evaluates whether the defendant was in custody. (Ibid.)
"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.] [Fn. omitted.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citations.] 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.]" (Pilster, supra, 138 Cal.App.4th at 1403, internal quotation marks omitted.) "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 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.)
Defendant asserts several of these factors require the conclusion he was in custody, but the record at the suppression hearing does not support his claim. We review the correctness of the trial court's ruling at the time it was made, not by reference to evidence produced at a later date. (People v. Jenkins (2000) 22 Cal.4th 900, 1007, fn. 23; People v. Welch (1999) 20 Cal.4th 701, 739; People v. Hendrix (2013) 214 Cal.App.4th 216, 243.) Defendant did not testify at the suppression hearing, and the transcript of his interview on his front porch with the officers apparently was not available until the trial.
Accordingly, the only evidence before the trial court at the hearing showed merely that defendant spoke to two officers on his front porch for less than 15 minutes. Specifically, defendant agreed to step out onto the porch while the social worker met with other family members inside, and Hernandez patted defendant down in a routine safety check, but did not otherwise arrest or detain defendant "in any way," nor raise his voice with him, nor handcuff him. After a couple minutes, it seemed defendant did not understand English "entirely," so they ceased conversing until a Spanish-speaking officer soon arrived, and then spoke for about 10 more minutes. Defendant was seated and the officers stood "off to [either] side" of him.
Defendant points to his pat down as an indicia of custody because he was "made to put his hands behind his back and submit" to the procedure. He also notes the officers stood whereas he sat, but there was no evidence the officers acted to block his path or exerted a domineering presence; to the contrary, his own front door was immediately within reach. Physical restrictions often implicate Miranda because they convey to the suspect that he is "completely at the mercy of the police" (Berkemer, supra, 468 U.S. at p. 438) and his detention is not likely to be "temporary and brief" (id. at p. 437), but the opposite was true here. As we observed in Pilster, even "brief handcuffing" for safety purposes does not automatically amount to a formal arrest. (Pilster, supra, 138 Cal.App.4th at p. 1404.)
Here, the objective circumstances would not suggest to a reasonable person that he was under arrest. The officers did not draw weapons, or subject defendant to ongoing physical restraints or other hallmarks of a custodial arrest requiring Miranda warnings. (See, e.g., 2 LaFave et al., Criminal Procedure (4th ed. 2015) Interrogation and Confessions,§ 6.6(f), at pp. 833-834, fns. omitted [earmarks pointing to custodial arrest include "handcuffing, drawing a gun, holding by the arm, or placing into a police car"].)
A defendant is not in police custody simply because he is temporarily detained by police. (People v. Thomas (2011) 51 Cal.4th 449, 475-477; In re Joseph R. (1998) 65 Cal.App.4th 954, 957-958.) Indeed, defendant's presence on the porch resembled a brief hold during the execution of a search warrant and, "in the usual case, a person detained during the execution of a search warrant is not 'in custody' for purposes of Miranda." (United States v. Burns (7th Cir.1994) 37 F.3d 276, 281 (Burns).) As the court in Burns observed, "Most detentions that occur during the execution of a search warrant, like most Terry stops [Terry v. Ohio (1968) 392 U.S. 1], are 'comparatively nonthreatening.' They are often short in duration." (Burns, at p. 281.) That was the case here.
Defendant notes that the social worker informed Hernandez and Owens as they approached the home that the case involved allegations of sexual abuse against defendant. But that is not dispositive because, as higher courts have observed, "The objective circumstances . . . are examined, not the '"subjective views harbored by either the interrogating officers or the person being questioned."'" (People v. Kopatz (2015) 61 Cal.4th 62, 80.) "'Nor is the requirement of warnings to be imposed simply because . . . the questioned person is one whom the police suspect.'" (Stansbury v. California (1994) 511 U.S. 318, 324.) As the trial court noted, "[O]fficers quite often talk to people for no other purpose than to clear them. That's part of what people — the police do too. And at that point, I think all they were doing was just trying to figure out what they had."
The record supports the trial court's conclusion. In our view, the most significant factor is that the discussion took place in front of defendant's home, not at the police station, where interrogation "frequently is prolonged, and . . . the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek." (Berkemer, supra, 468 U.S. at p. 438.) A home interview puts the defendant in a familiar and friendly environment, and thus strongly indicates the interview was noncustodial. (People v. Mitchell (1990) 222 Cal.App.3d 1306 (Mitchell); People v. Murphy (1982) 127 Cal.App.3d 743, 748-749; People v. Butterfield (1968) 258 Cal.App.2d 586, 589-590.) In rejecting custody in Mitchell, the appellate court observed that the defendant was not "prevented from simply returning to his house's interior without speaking to the officers." (Mitchell, supra, at pp. 1311-1312.) Similarly here, there were only two officers, including one acting as a translator, and it does not appear they blocked defendant physically or otherwise controlled him in a manner tantamount to custodial arrest. Consequently, the trial court did not err in denying defendant's suppression motion. B. Probation Report Costs
Citing section 1203.1b, defendant argues reversal and a new hearing on his ability to pay probation costs is required because at the sentencing hearing the trial court "did not comply with the statute when it imposed $2,717.62 in probation report costs." The statute provides for a hearing, which the defendant may waive, on the defendant's ability to pay all or a portion of the probation department's costs to investigate and prepare a presentence report. (§ 1203.1b, subd. (a).) The probation officer must advise the defendant of his or her right to the hearing, and the defendant's waiver of the hearing must be knowing and intelligent. (Ibid.)
After the jury returned its verdict in the underlying trial, the trial court ordered defendant to submit financial information, as follows: "I have something I need to read to the defendant. The financial information is important to me. It affects decisions I make at sentencing. So please listen carefully. [¶] The defendant is ordered to prepare and file a disclosure identifying all assets, income, and liabilities in which the defendant held or controlled a present or future interest as of the date of the defendant's arrest for the crime for which restitution may be ordered. The disclosure shall be made available no later than the date of sentencing. . . . [¶] I use this information to determine ability or inability to pay certain fines and fees." Defendant did not submit the financial information the trial court requested, and declined to meet with the probation officer.
Defendant forfeited the challenge he now raises. (People v. Trujillo (2015) 60 Cal.4th 850, 858 (Trujillo).) Rejecting an identical claim, the Supreme Court in Trujillo held: "Notwithstanding the statute's procedural requirements, . . . plac[ing] the burden on the defendant to assert noncompliance with section 1203.1b in the trial court as a prerequisite to challenging the imposition of probation costs on appeal is appropriate." (Ibid.) The court analogized to its holding in People v. Scott (1994) 9 Cal.4th 331, 353, explaining that, "'[a]lthough the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing.'" (Trujillo, at p. 858.) Accordingly, as to the ability to pay probation report costs, "the defendant—or his or her counsel—is in a better position than the trial court to know whether the defendant is in fact invoking the right to a court hearing. In Scott, the existence, per se, of procedural safeguards in the sentencing process . . . did not prevent us from holding the forfeiture rule should apply . . . . The same conclusion follows with respect to the imposition of the fees challenged here." (Ibid.)
Defendant suggests that in the absence of a court inquiry into the defendant's ability to pay, "the statutory requirement of finding an ability to pay [is turned] on its head." But the statute provides that the defendant may waive the inquiry (§ 1203.1b, subd. (a)), and as the high court has observed in the context of similar statutes with ability-to-pay fee structures, absent an objection, a challenge to the sufficiency of the evidence to support the defendant's ability to pay generally does not lie. As the court explained, "Parties may generally challenge the sufficiency of the evidence to support a judgment for the first time on appeal because they 'necessarily objected' to the sufficiency of the evidence by 'contesting [it] at trial.'" (People v. McCullough (2013) 56 Cal.4th 589, 596.) But where the defendant has interposed no objection to fees in the form of requesting a hearing on his or her ability to pay, the lack of a hearing does not require reversal. (Trujillo, supra, 60 Cal.4th at pp. 858-859.)
Defendant claims he implicitly demanded a hearing on his ability to pay when counsel advised the trial court at the sentencing hearing that defendant had declined a meeting with the probation officer in the absence of counsel, and the meeting was never rescheduled. The probation officer is charged with conducting an initial inquiry into the defendant's ability to pay the probation report costs, and with advising the defendant of the right to have the court conduct its own inquiry. (§ 1203.1b, subd. (a).) But as discussed, defendant and his or her counsel are in the best position to know whether the defendant wants a court hearing. (Trujillo, supra, 60 Cal.4th at p. 858.)
Counsel's explanation here as to why defendant did not meet with the probation officer was not tantamount to a request for a court inquiry into defendant's ability to pay. Neither counsel nor defendant asked for a court hearing, nor made an offer of proof as to what defendant would say about his ability or inability to pay costs. As in Trujillo, such silence amounts to tacit assent waiving one's right under the statute to a court hearing. As Trujillo explained, "Defendant, who chose not to provide information regarding her financial status to the probation officer, has never claimed a lack of notice of the amounts of the fees the court might impose. Represented by counsel, defendant made no objection at sentencing to the amount of probation-related fees imposed or the process, or lack thereof, by which she was ordered to pay them; nor does the record contain any indication defendant later raised the question of her ability to pay in the probation department or the sentencing court. No reason appears why defendant should be permitted to appeal the sentencing court's imposition of such fees after having thus tacitly assented below." (Trujillo, supra, 60 Cal.4th at pp. 858-859.)
Defendant asserts in the alternative that he received ineffective assistance of counsel when his attorney failed to object and insist upon a court hearing. (Strickland v. Washington (1984) 466 U.S. 668, 693-694.) We decline to reach the claim (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267) because for all we know counsel investigated the issue and found or believed defendant had the ability to pay the probation report cost. (See People v. Hoover (2011) 199 Cal.App.4th 1470, 1473 [no error where defendant could pay $4,615 in probation fees in $30 installments].)
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.