Filed 7/7/17 P. v. Espinoza 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

CHRISTIAN ESTEBAN ESPINOZA,

Defendant and Appellant.


G053758

(Super. Ct. No. 14WF4386)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
We appointed counsel to represent Christian Esteban Espinoza on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client but advised the court she found no issues to argue on his behalf. We gave Espinoza 30 days to file written argument on his own behalf. That time has passed, and Espinoza has not filed any written argument.
Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006)
40 Cal.4th 106, 110, 120, 124 (Kelly).) Espinoza did not raise any issues himself.
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel raised two issues: (1) were Espinoza’s statements admitted in violation of his rights pursuant to Miranda v. Arizona (1978) 384 U.S. 436; and (2) did the trial court err by instructing the jury with a modified version of CALCRIM No. 1191 concerning evidence of charged sexual offenses.
FACTS
K.H., 16 years old at trial, and K.A.H., 18 years old at trial, are sisters. Their mother was killed in a car accident in 2011. After their mother’s death, the sisters lived with a couple from their church and months later went to live with Cindy H., who was also involved with the church. Espinoza was a family friend who the sisters knew from church.
When K.H. was at Espinoza’s house playing with his son Christopher in Christopher’s bedroom, Espinoza started rubbing her on the buttocks, and touched her on her breasts. K.H. was about nine years old when this happened. On one or two other occasions, Espinoza pulled down K.H.’s pants and touched her vaginal area, inserting a “finger or two.”
There were 10 to 20 more incidents where Espinoza touched K.H. on her buttocks or breasts, over and under her clothing. One or two times he put his mouth on her vagina and inserted his tongue, but K.H. could not remember any specifics. K.H. had a vague recollection of something happening when her sister was in the room.
K.A.H. described an incident when she was playing with Christopher at Espinoza’s apartment. Espinoza came into the bedroom where K.A.H. and Christopher were playing, and crouched down behind her. He then “inappropriately” rubbed his “private parts” on K.A.H. He also touched her vaginal area with his finger, and slid his hand under her bra. A second incident occurred when K.A.H. was babysitting Christopher with her sister, and Espinoza lifted her dress and touched her breasts. Most of the incidents happened when the sisters were babysitting Christopher.
In October 2014, both sisters attended a church camp. During a “trust exercise,” the children stood in a large circle. One of the children would step into the circle and relate an experience. The other children were asked to step into the circle if they had also had the experience. When the child in the circle said she had been molested, K.H. and K.A.H. both stepped into the circle. Later, the church pastor talked to K.H. and K.A.H., and they told him a person named Espinoza molested them. Later, the pastor talked to Cindy, who spoke to the girls and then called the police.
Detective Michelle Bradbury interviewed both girls, and assisted K.H. in a pretext call to Espinoza. K.H. placed a call to Espinoza. After considerable small talk, K.H. said she wanted to talk about some things that happened while her mom was still alive. K.H. told Espinoza she was thinking about going to a counselor because of things that happened when she was younger. She asked if he remembered touching her in different places when she was babysitting his son. K.H. explained she was curious why he would do “that stuff” and asked Espinoza if he loved her. After K.H. said she was very confused, Espinoza responded he did not know what to say and said sometimes people make mistakes. Espinoza asked K.H. if she was alone and why she was using a pre-paid cell phone. K.H. explained she did not want anybody “to find out.” K.H. told him she wanted to get closure and again asked him “why?” Espinoza said, “I think what we had back then was really different.” He indicated he was confused like she was. He said he loved her, and thought they “mixed up feelings, or something.” K.H. said someone just came in and she would call him back.
When K.H. called Espinoza back, he suggested they “talk about it” when it is just you and me talking. He told her that she and her sister meant the world to him, and he did not want to lose either one. K.H. asked Espinoza if he still wanted to touch her, and he said no. But he said if she needed an arm or a kidney or anything, he would give it to her.
A couple weeks later, Bradbury and her partner, Detective Manson, went to Espinoza’s workplace and interviewed him in a supervisor’s office with the door closed. It was a small office, with one chair behind a large desk, and two chairs facing the desk, with backs toward the door. Bradbury testified she and Manson were in plain clothes with jackets worn over dress shirts. Each had a badge, radio, handcuffs, and a gun on their belt. Bradbury recorded the interview, but about 10 minutes into the interview she realized the recorder was not functioning because the batteries died. Manson changed the batteries, and the interview continued. Bradbury could not say how long the recorder was off before the batteries were changed. During the break in the recording, before the battery problem was discovered, Bradbury said that Manson informed Espinoza “the door was unlocked, but we were closing it for privacy reasons, and he can leave if he wanted.” He was not told he could end the interview at any point in time. At the beginning of the interview, Bradbury told Espinoza that he was not under arrest.
The interview lasted approximately one hour. During the interview, Espinoza made incriminating statements. Espinoza admitted he hugged K.H. but said it was only because she encouraged him to do so. He indicated he felt uncomfortable when hugging K.H. He admitted touching K.H.’s vagina both over and under her clothes, but he said this occurred because K.H. placed his hand on her intimate parts. Espinoza said he was not proud of what he had done. He denied ever touching K.A.H. At the end of the interview, the detectives told Espinoza that he was going to be arrested, but they would not handcuff him until they got him away from work. Bradbury first advised Espinoza of his Miranda rights after he arrived at the police station.
An information amended by interlineation charged Espinoza with the following: two counts of committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a), all further statutory references are to the Penal Code) (counts 1 and 2—K.A.H.); committing a lewd act on a child under the age of 14 (§ 288, subd. (a)) (count 3—K.H.); and oral copulation or sexual penetration with a child 10 years or younger (§ 288.7, subd. (b)) (counts 4 and 5—K.H.). As to counts 1, 2, and 3, the information alleged Espinoza committed the offenses against more than one victim
(§ 667.61, subd. (c)).
A jury convicted Espinoza of all counts and found true the multiple victim allegations. After the trial court denied his new trial motion, the court sentenced Espinoza to prison for consecutive terms of 15 years to life on counts 1 and 4 for a total of 30 years to life. The court imposed concurrent terms on counts 2 and 5, and imposed and stayed the term on count 3 (§ 654). Espinoza filed a timely notice of appeal.



DISCUSSION
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the possible issues raised by appellate counsel has disclosed no reasonably arguable appellate issue.
DISPOSITION
The judgment is affirmed.



O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



MOORE, J.