Filed 3/27/18 P. v. Cruz CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

FELIX CRUZ,

Defendant and Appellant.


G054537

(Super. Ct. No. 14CF3636)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.
Gerald J. Miller, 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, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Felix Cruz appeals from the judgment entered after a jury found him guilty of committing sodomy with a child under 10 years old, sexual penetration of a child under 10 years old, and a forcible lewd act upon a child under 14 years old. He contends the trial court erred by admitting evidence of statements that he made during a police interview because they were “improperly elicited through express or implied threats of punishment” and thus involuntarily made. He also argues the trial court erred by allowing one of the victims, a then eight-year-old boy who was reluctant to testify, to have a support person near him during his testimony. He further argues the judgment of conviction must be reversed due to the cumulative effect of the claimed trial court’s errors.
We affirm. Viewing Cruz’s statements during the police interview under the totality of the circumstances, we conclude they were made voluntarily. The record does not show he was threatened by either of the police officers who interviewed him. The trial court therefore did not err by denying Cruz’s motion in limine seeking to exclude his statements at trial. The court did not err by allowing the victim’s aunt, with whom he then lived, to sit behind him while he testified. As we have rejected each of Cruz’s contentions of error, there was no cumulative error.

FACTS
In 2014, Cruz lived with Maria and her nine children. On one occasion in February 2014, Cruz reached under the clothing of Maria’s oldest child, J.T., who was then 10 years old, and touched his penis for about 20 seconds. J.T. told Cruz that he was not comfortable; Cruz got mad and walked out of the room.
In August 2014, Maria instructed J.T. to go with Cruz on an errand. Cruz was driving a van and got into an accident. After the accident, Cruz stopped the van, told J.T. to get into the back of the van, and further told J.T. that he wanted to rape him. Cruz told J.T. that Cruz was going to show him how he would “do it to women.” Cruz unzipped his pants, pulled J.T. and started to touch J.T. J.T. got out of the van; Cruz told him to get back in and suggested that J.T. drive. J.T. drove the van.
On October 25, 2014, J.T.’s five-year-old brother J.O. went to his babysitter’s house. The babysitter noticed that J.O., who was usually restless, playful, and talkative, was quiet, walked slowly, and sat down on the sofa “very gingerly.” The babysitter asked J.O. why he was so quiet and had not thrown himself on the sofa like he usually did. J.O. told the babysitter that Cruz had “placed his front part in his back part and that he was bleeding.” The babysitter directed her adult son to call the police while she checked J.O. and saw that blood was oozing from his anus. J.O. was crying.
Santa Ana Police Officer Ivan Vera responded to the babysitter’s home. Vera testified J.O. told him that he was not “okay” and further told Vera that he had been abused by his stepfather. J.O. was transported by paramedics to the hospital.
A pediatrician examined J.O. at the hospital. She observed that he was actively bleeding. She found injuries around J.O.’s anus and inside his rectum to be consistent with “blunt force penetrating trauma” and consistent with sexual abuse. Several swabs were collected from J.O.’s mouth, penis, scrotum, and anus.
Forensic specialist Leonard Correa with the Santa Ana Police Department was dispatched that same day to the apartment where J.O. and his family lived. Correa contacted Cruz and had Cruz sign a consent form to submit to having his mouth swabbed to collect a sample of his genetic material. Santa Ana Police Officer Gabriel Esparza transported Cruz to the police department for an interview. Cruz was handcuffed and placed in an interview room. Cruz was offered something to drink, but he declined. He was read his rights under Miranda v. Arizona (1966) 384 U.S. 436. Cruz signed a written advisement of rights.
Cruz was interviewed by Esparza and Officer Darren Zroka. Neither officer showed any sign of force during the interview; no physical force was used and no firearm was displayed.
At one point during the interview, Esparza told Cruz that J.O. was very scared about what had happened which was why the officers wanted to know the truth. He told Cruz that they could not help if Cruz did not tell the truth, J.O. was not lying, and “[t]he one who is lying to me right now is you.” Cruz stated, “have him brought to me.”
Esparza then asked if Cruz understood, and further asked, “[d]o you have papers?” Cruz responded, “What?” Esparza responded: “Do you have papers, are you from here? The City of Santa Ana . . . it’s, uh . . . ” and Zroka added “[s]anctuary.” Esparza continued: “[A] city that accepts the, the undocumented. You’re not going to see . . . ICE, Immigration here, none of that. But we’re, your truth, the version, the truth. Because right now, the evidence that you’re lying to us . . . is very different than the witness . . . who saw . . . what the boy said, and what your wife is saying.”
Cruz maintained nothing had happened. Esparza told Cruz that Zroka knew the truth and wanted to hear Cruz’s version; he stated he wanted to know what made Cruz behave “that way” and specifically whether “[i]t was the alcohol.” Cruz continued to insist that he had told the truth.
Esparza told Cruz that J.O. was at the medical center and that he was asking for help. Esparza told Cruz that J.O. viewed Cruz as a father who made a mistake and that the first step was “to put everything straight.” Esparza stated there were many programs that could help Cruz but they had to know what happened.
Cruz responded, “Yes. I was drunk” and admitted he had abused J.O. Cruz told the officers that he had “penetrated” J.O. that morning but did not remember how except that he had pushed J.O. down on his stomach, directed him to remove his clothes, and penetrated him for about 10 seconds.
Test results showed semen found in the perianal sample taken from J.O. contained DNA consistent with Cruz’s DNA profile and that the frequency of unrelated persons with that DNA profile was more rare than one in one trillion. DNA consistent with Cruz’s DNA profile was also found in non-sperm DNA samples taken from J.O.’s scrotum area.

PROCEDURAL HISTORY
Cruz was charged in an information with sexual intercourse or sodomy of a child 10 years or younger in violation of Penal Code section 288.7, subdivision (a) (count 1); oral copulation or sexual penetration with a child 10 years old or younger in violation of section 288.7, subdivision (b) (count 2); and committing a forcible act on a child under 14 years old in violation of section 288, subdivision (b)(1) (count 3).
The jury found Cruz guilty on all three counts. The trial court imposed a 40-years-to-life prison term and a determinate 10-year prison term. Cruz appealed.

DISCUSSION
I.
THE TRIAL COURT DID NOT ERR BY ADMITTING CRUZ’S STATEMENTS TO THE POLICE.
Before trial, Cruz filed a motion in limine in which he sought to exclude his statements to police during his October 25, 2014 interview. Cruz argued that Esparza’s questions about whether Cruz had “papers” and reference to immigration could only be perceived by Cruz as a threat. The trial court denied the motion in limine, finding that the officers’ comments did not constitute an express or implied threat and that Cruz’s statements had been made of his own free will.
In his appellate opening brief, Cruz argues the trial court erred by admitting Cruz’s statements to police because they were elicited through implied threats of deportation and, therefore, were involuntary and coerced. For the reasons we will explain, Cruz’s argument is without merit.
A.
Applicable Legal Principles and Standard of Review
“Both the state and federal Constitutions bar the prosecution from introducing a defendant’s involuntary confession into evidence at trial. [Citations.] ‘“A statement is involuntary if it is not the product of ‘“a rational intellect and free will.”’ [Citation.] The test for determining whether a confession is voluntary is whether the defendant’s ‘will was overborne at the time he confessed.’”’ [Citations.] [¶] ‘“A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it ‘does not itself compel a finding that a resulting confession is involuntary.’ [Citation.] The statement and the inducement must be causally linked. [Citation.]” [Citation].’ [Citation.] A confession is not rendered involuntary by coercive police activity that is not the ‘motivating cause’ of the defendant’s confession.” (People v. Linton (2013) 56 Cal.4th 1146, 1176.)
“‘The prosecution has the burden of establishing by a preponderance of the evidence that a defendant’s confession was voluntarily made.’ [Citation.] ‘Whether a confession was voluntary depends upon the totality of the circumstances.’ [Citations.] ‘On appeal, we conduct an independent review of the trial court’s legal determination and rely upon the trial court’s findings on disputed facts if supported by substantial evidence.’ [Citation.] The facts surrounding an admission or confession are undisputed to the extent the interview is tape-recorded, making the issue subject to our independent review.” (People v. Linton, supra, 56 Cal.4th at pp. 1176-1177.)
Under both state and federal law, relevant factors in determining the question of voluntariness of a confession, by applying the totality of circumstances test include “‘“‘the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity’ as well as ‘the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.’”’” (People v. Boyette (2002) 29 Cal.4th 381, 411.)
B.
The Totality of the Circumstances Shows
Cruz’s Statements Were Made Voluntarily.
Cruz’s argument that his statements during his police interview were made involuntarily is focused on the argument that Esparza and Zroka impliedly threatened immigration consequences if he did not confess. He does not contend that other factors, such as the location or length of his interview, its continuity, his maturity, education, and/or physical or mental health affected the voluntariness of his statements.
Upon our independent review of the totality of the circumstances (People v. Boyette, supra, 29 Cal.4th at p. 412), we conclude Cruz’s statements to Zroka and Esparza were made voluntarily. Viewing the police officers’ statements in context regarding Cruz’s “papers” and immigration, they cannot be reasonably construed as a threat. Instead, they show an effort to assure Cruz that he was free to tell the truth in Santa Ana, a city that accepts the undocumented, and that he was not going to see federal immigration authorities. The officers’ statements were “not ‘“of a type reasonably likely to procure an untrue statement”’” (People v. Jones (1998) 17 Cal.4th 279, 299), and did not render Cruz’s statements to them involuntary. The trial court therefore did not err by admitting evidence of them at trial.
II.
THE TRIAL COURT DID NOT ERR BY ALLOWING J.O. TO HAVE HIS AUNT, M., SIT BEHIND HIM DURING HIS TESTIMONY AS HIS SUPPORT PERSON.
Cruz argues the trial court improperly permitted J.O.’s aunt, M., who was also a witness in the case, to serve as J.O.’s support person because several procedural statutory requirements relevant to such an arrangement had not been met. Under the circumstances of this case, the trial court did not err by allowing M. to sit behind J.O. during his trial testimony.
Section 868.5 provides: “(a) Notwithstanding any other law, a prosecuting witness in a case involving a violation or attempted violation of Section . . . 288 [and]
. . . 288.7 . . . shall be entitled, for support, to the attendance of up to two persons of his or her own choosing, one of whom may be a witness, at the preliminary hearing and at the trial, or at a juvenile court proceeding, during the testimony of the prosecuting witness. Only one of those support persons may accompany the witness to the witness stand, although the other may remain in the courtroom during the witness’ testimony. The person or persons so chosen shall not be a person described in Section 1070 of the Evidence Code unless the person or persons are related to the prosecuting witness as a parent, guardian, or sibling and do not make notes during the hearing or proceeding.
“(b) If the person or persons so chosen are also witnesses, the prosecution shall present evidence that the person’s attendance is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness. Upon that showing, the court shall grant the request unless information presented by the defendant or noticed by the court establishes that the support person’s attendance during the testimony of the prosecuting witness would pose a substantial risk of influencing or affecting the content of that testimony. . . . In all cases, the judge shall admonish the support person or persons to not prompt, sway, or influence the witness in any way. Nothing in this section shall preclude a court from exercising its discretion to remove a person from the courtroom whom it believes is prompting, swaying, or influencing the witness.
“(c) The testimony of the person or persons so chosen who are also witnesses shall be presented before the testimony of the prosecuting witness. The prosecuting witness shall be excluded from the courtroom during that testimony. Whenever the evidence given by that person or those persons would be subject to exclusion because it has been given before the corpus delicti has been established, the evidence shall be admitted subject to the court’s or the defendant’s motion to strike that evidence from the record if the corpus delicti is not later established by the testimony of the prosecuting witness.” (Italics added.)
Before trial, the prosecutor filed a motion in limine requesting that J.O. be allowed the presence of a support person within the meaning of section 868.5 during his trial testimony. After the prosecutor confirmed that the support person would not be a relative but someone from the victim witness program, Cruz’s counsel stated the prosecutor had addressed his concerns and withdrew objection to the presence of a support person. The court granted the prosecutor’s motion “subject to reconsideration in the event that someone is here that [Cruz’s counsel] feel[s] shouldn’t be present in court.”
After Cruz’s counsel finished his opening statement, the prosecutor called then eight-year-old J.O. as his first witness. Our record shows that the trial court then asked the jurors to leave the courtroom.
Outside the presence of the jurors, the court stated: “The court obviously has the vantage point of not only being elevated, but also having a clear view of what goes on when the inner doors are open to the outer doors which were open. It’s a period—it’s a—if I can have just a moment, please. It’s probably about three feet by six feet. I don’t think any of the jurors saw what I saw, but there is obviously a young, very young boy who I have never seen who was just not coming into the courtroom. It was pretty obvious to the court. It was just obvious. I don’t think any of the jurors saw it because it was all contained in that space that I talked about. [S]o what I’m going to do, I’m going to just take a short recess. I feel that at this point in time if the child does come in, the child will be placed on the witness stand and then we can bring the jurors—we can then bring the jurors in and then conduct the examination.”
After J.O. was seated on the witness stand, the court greeted him and stated “there is a lady who is behind this young man, and this is J[.O.]?” The prosecutor confirmed J.O. was seated on the witness stand and that his aunt, M., was seated behind him. After Cruz’s counsel objected, the court initially asked J.O. to step outside but asked him to return; J.O. told the court he would return. The prosecutor expressed concern about having J.O. leave the courtroom at that point “based on what just happened,” but the court stated, “No, I understand that, I understand that, but we need to have a hearing outside the presence.”
The court then asked J.O. to remain where he was, told J.O. that the court was going to talk to the attorneys, and asked the prosecutor, Cruz’s counsel, and the court reporter to meet in chambers.
In chambers, the court noted the familial relationship between J.O. and M. The court also reiterated its observation of J.O.’s reluctance to enter the courtroom. The prosecutor added that J.O. was shaking, had been clinging to the outside door, refused to make eye contact, and would not respond verbally to anyone. The prosecutor stated “that’s why I requested [M.] be allowed not to sit next to him, at least sit behind him. Now we finally got him on the stand based on that.”
The court asked the prosecutor if M. was going to be a witness and the prosecutor responded: “She is. She’s not testifying to anything that is in the realm of what happened to J[.O.]. Obviously, she wasn’t there. I think she was maybe there earlier that morning and then left before the incident happened, and she’s coming in more for J.T. She was there the night of the car accident.” The court confirmed that M. was not the same person as the babysitter to whom J.O. had confided Cruz’s abuse on October 25, 2014.
The court stated: “I know there is an objection, but I do feel that under the [Evidence Code section] 700 series, the court does have the discretion to exclude witnesses, and based on the nature of what the people have represented, the fact that the child is very reluctant to be here, and balancing the defendant’s right of confrontation and the People’s right to pursue this case, that it can be brought out the fact in front of the jurors about this person here. So I don’t believe it’s going to be a denial of cross-examination, and under [Evidence Code, section] 765, the court does feel that it does have a responsibility toward the witnesses, all who appear in front of the court. [¶] So the objection at this time will be overruled.”
J.O. testified that he lived with his aunt, M., who was the person sitting behind him. He briefly testified that there was a time that Cruz hurt his private area.
In his opening brief, Cruz argues that the trial court erred by allowing M. to sit behind J.O. as his support person during his trial testimony because “none of [the statutory] procedural safeguards, intended to protect the rights of a criminal defendant, were observed in this case.” First, Cruz argues that by allowing the prosecutor to “renege on their promise to utilize a person from the ‘victim witness program’” instead of a relative to serve as J.O.’s support person, the trial court deprived Cruz of the opportunity to present evidence that M.’s attendance during J.O.’s testimony would “‘pose a substantial risk of influencing or affecting’ his testimony, as guaranteed under section 868.5, subdivision (b).” Cruz does not identify any evidence that would show such a risk, argue that any such evidence does in fact exist, or otherwise show that M.’s presence influenced J.O.’s testimony in any way.
Cruz argues the trial court erred by failing to require M. to testify before J.O. under section 868.5, subdivision (c) and thus risked M.’s testimony being tailored. As pointed out by the prosecutor in chambers, M. was not a percipient witness regarding the offenses committed against J.O. She testified that she observed damage to the van the day Cruz assaulted J.T. J.T. did not tell M. about Cruz’s sexual abuse.
Cruz further argues the trial court erred by failing to admonish M., under section 868.5, subdivision (b), not to prompt, sway, or influence J.O.’s testimony. Cruz failed to request that the court so admonish M. during trial. But even if Cruz’s argument is not forfeited for failure to request an admonishment, nothing in the record shows that M. prompted, swayed, or influenced J.O.’s brief trial testimony in any way. Nor does anything in the record suggest that M.’s presence bolstered J.O.’s credibility. Given the circumstances, the trial court did not err by allowing M. to serve as J.O.’s support person.
III.
THERE WAS NO CUMULATIVE ERROR
Cruz asserts he was prejudiced by cumulative error. “[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) We have rejected each of Cruz’s contentions of error on appeal for the reasons set forth ante. Therefore, there was no cumulative error.

DISPOSITION
The judgment is affirmed.



FYBEL, J.

WE CONCUR:



ARONSON, ACTING P. J.



THOMPSON, J.