P. v. Gallegos

 

 

 

 

 

 

 

 

 

 

 

Filed 10/16/13  P. v. Gallegos 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.   JORGE MIGUEL GALLEGOS,         Defendant and Appellant.

G046986            (Super. Ct. No. 09CF3141)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Carla M. Singer, Judge.  Affirmed.

                        Susan D. Shors, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Melissa Mandel and A. Natasha Cortina,
Deputy Attorneys General, for Plaintiff and Respondent.

 

                        A jury convicted Jorge
Miguel Gallegos of one count of unlawful sexual intercourse or sodomy with a
child under age 10 (Pen. Code, § 288.7, subd. (a); count 1),href="#_ftn1" name="_ftnref1" title="">[1]
three counts of oral copulation or sexual penetration of a child under age 10
(§ 288.7, subd. (b); counts 2, 3, 5), one count of href="http://www.mcmillanlaw.com/">dissuading a witness (§ 136.1,
subd. (b); count 4), and one of lewd and lascivious acts on a child under age
14 (§ 228, subd. (a); count 6).  The
trial court sentenced him to a total indeterminate term of 40 years to life,
plus a determinate term of 8 months.

                        Gallegos gave a
statement after his arrest.  As he did in
the trial court, Gallegos claims his statements were obtained in violation of
his Miranda rights (>Miranda v. Arizona (1966) 384
U.S. 436) and coerced.  The trial court
rejected his arguments and admitted evidence of Gallegos’s statement at
trial.  We conclude the trial court’s
ruling is correct and affirm the judgment.

 

FACTS

 

                        In 2009, Norma M.href="#_ftn2" name="_ftnref2" title="">[2]
lived with Gallegos and her four children. 
Gallegos is the biological father of the youngest two children, and he
assumed a parental role with Norma’s eldest children, Jessica M., then eight
years old, and Sheila M.

                        When Norma went to bed
on Christmas Eve, Gallegos stayed up with Jessica and Sheila to watch a
movie.  Norma woke up sometime later and
noticed the television had been turned off but Gallegos had not come to
bed.  She quietly entered the family room
and saw Sheila asleep on the couch.  When
she peeked into the kitchen, Norma saw Gallegos and Jessica on the kitchen
floor.  Jessica’s underpants and pants
had been pulled down to her ankles. 
Gallegos was licking Jessica’s vagina. 
Norma turned on a light and told Gallegos she was going to call the
police.  Gallegos reacted by struggling
with Norma, disconnecting the telephone line, threatening her if she called the
police, and running out of the house.

                        Santa Ana Police
Officers Richard Ribeiro and Antonio Graham were dispatched to investigate
Norma’s call.  Norma, was “emotional,”
and because she spoke only Spanish, Ribeiro called for a Spanish interpreter.  With the assistance of Corporal Elms, Ribeiro
listened as Norma described what she had seen transpire in the kitchen.  Ribeiro also found a pair of child-sized pants
on the kitchen floor. 

                        Gallegos was quickly
arrested and taken to the Santa Ana Police Department.  Once there, he provided a DNA sample, and the
officers put him in an interview room furnished with audio and video recording
equipment. 

                        As depicted in the DVD
of the interview and transcripts prepared by the prosecution and defense, Santa
Ana Police Officers David Lima and Ribeiro interviewed Gallegos between 2:20 a.m. and 3:15
a.m. on December 25, 2009.  Lima
questioned Gallegos in Spanish.  We have
utilized the English translation of Lima’s
questions and Gallegos’s answers as provided in the parties’ transcripts.

                        Lima
first introduced himself and Ribeiro and then asked Gallegos to sign a form
memorializing his consent to DNA testing. 
Gallegos either said he needed to read the form or he could not read,
and Lima explained that the form
was consent for “the thing that they put in your mouth.”  Lima
then said, “Um, before we start
I . . . he . . . the officer is going
to talk to you and I am going to translate. 
My Spanish isn’t too great but you can understand me right?  Yes?  Yes
or no?”  Gallegos responded, “Yes.”

                        After Gallegos indicated
he understood Lima, the officer
read the Santa Ana Police Department’s standard Miranda admonishment of rights form in Spanish.  Lima explained, “This here are your rights
that you have . . .  I am
going to read them to you and every time that you say yes then tell me
yes.  Okay.  ‘You have the right not to say anything do
you understand? 
[¶] . . . [¶] Yes or no? ’”  Gallegos responded, “Yes.”  Lima continued, “Yes. Okay.  ‘What you say today . . . may
be used against you in a court, do you understand?’”  Gallegos replied, “Yes.”  Lima said, “‘you have the right to an
attorney before and during any questioning, do you understand?’”  Gallegos again said, “Yes.”  Lima continued, “‘If you do not have money to
pay for an attorney one will be appointed for you before any questioning if you
wish, do you understand?’”  Gallegos
replied, “Yes.”

                        Lima asked Gallegos if
he “wish[ed] to speak with us about what happened[,]” but then asked Gallegos
where he was from.  Gallegos said he was
from Michoacán, Mexico.  Lima stated,
“Oh.  Okay.  We are going to talk
about . . . about . . . we are going to
talk about the . . . why we are here and all that,
okay?  If that’s all right with you.”  Before Gallegos could respond, Lima asked him
if he knew the date.  Gallegos said the
date was “24.”  Lima asked for the time,
and Ribeiro said it was 2:20. 

                        Ribeiro then directed
Lima to ask Gallegos if he knew why he had been arrested, Gallegos responded,
“[b]ecause they say that I tried to abuse the girl.”  He initially denied doing anything and said
he did not know why Norma thought otherwise. 
After getting some background information about Gallegos’s relationship
with Norma, Lima said, “Okay.  So I am
going to tell you honestly that you have to . . . tell us
the truth.  It’s in your favor for you to
tell us the truth.”  Gallegos responded,
“Well it’s better for me anyway.”  Lima
responded, “Okay.  So why don’t you tell
us the truth?”  Gallegos said, “That’s
the truth.”  Lima replied, “[t]hink about
it one . . . minute.” 
Gallegos then said, “Why am I going to lie to you, I am going to be here
anyway.” 

                        Lima proceeded to ask
Gallegos a series of questions beginning with whether he had kissed
Jessica.  Gallegos responded in the
affirmative, and then admitted he kissed Jessica on the butt, “about two”
times, one time being about a month before what happened on Christmas Eve.  When Lima asked about what had happened that
day, Gallegos responded, “It was the fucking craziness I don’t know what the
fuck got into me . . . .”

                        Gallegos then admitted
grabbing Jessica while they were sitting on the couch, hugging and kissing her,
touching her bottom underneath her clothing, exposing his penis, and
masturbating.  He said he carried Jessica
to the kitchen, told her to remove her pants, and then he removed her
underwear.  While she was lying on her
back on the floor, he rubbed her vagina, and then inserted first his right
thumb and then his penis into Jessica’s vagina. 
He directed her to get down into a “crawling” position and kissed her
bottom.  When Lima asked, “tell me the
truth, did you put your penis inside of her[,]” Gallegos responded, “Yes.”  Gallegos said he did not ejaculate this time,
but he had ejaculated on two other occasions when he was “doing the same
thing.”  He also volunteered that he
directed Jessica “[n]ot to tell anyone.” 


                        Lima then asked a series
of questions regarding the appearance of Gallegos’s genitalia.  Lima attempted to ask if Gallegos had been
circumcised, but also asked, “how do you say circumcised in Spanish?”  Gallegos responded, “That if I
have . . . the skin that comes down.”  Lima continued, “That comes down, they did it
when you were a little boy right?” 
Gallegos then explained that his foreskin burst during a homosexual
encounter in Mexico many years earlier, and after further questioning Gallegos
said he had not been operated on as a child. 
Lima asked Gallegos to sign a form confirming his desire to speak with
the officers, which Gallegos signed, and Lima asked if the officers had
threatened him “or anything like that?” 
Gallegos said, “No, why? 
[¶] . . . [¶] I’m guilty anyway.” 

                        Gallegos told Lima and
Ribeiro he had consumed two beers earlier that day and admitted he once drank
quite a bit of alcohol, but he denied drinking any alcohol before the other two
times he molested Jessica.  Lima asked a
series of questions going over what had happened that night, and Gallegos
admitted disconnecting the phone on his way out of the house, but denied
threatening Norma if she called the police. 
Lima asked if Gallegos had any questions, and Gallegos responded that he
needed to go to the bathroom.  After
asking a few questions about Gallegos’s height, weight, and eye color, and
confirming Gallegos’s explanation for the tear on his foreskin, Lima concluded
the interview.

                        About the same time
Gallegos was being interview, Dr. Malinda Wheeler examined Jessica at the
hospital.  Her physical examination
revealed superficial abrasions and a fresh bleeding, tear in Jessica’s
hymen.  Wheeler testified Jessica’s
injuries were of a type generally caused by penetrating, blunt force trauma to
the vagina, and that such injuries would cause pain and discomfort in a
pre-pubescent child.  Wheeler testified
that only ten percent of sexual assault victims evidence injury, and it is
extremely rare to have visible, bleeding injuries during a sexual assault
examination.  Wheeler also testified she
did not see any evidence of injury to Jessica’s anus, but that the absence of
any visible injury would not be unusual in cases of anal penetration. 

                        Four days later, Dr.
Sandra Murray examined Jessica.  Murray
looked for injuries consistent with digital and penile penetration of the
vagina and anus.  She also reviewed the
medical report and photographs from Jessica’s hospital exam.

                        Murray testified young
girls often have a difficult time distinguishing between penetration of their
vagina and anus.  However, the injuries
to Jessica’s hymen were consistent with penetrating, blunt force to the
vagina.  Murray stated, “Seeing the acute
injury in the same place where I’m seeing the healed
injury . . . five days later, that would be highly
suspicious of . . . sexual assault and certainly evidence
of a penetrating injury.” 

                        Murray also testified
children evaluated for sexual abuse are routinely tested for sexually
transmitted diseases.  In Jessica’s case,
the test results indicated Jessica had an active chlamydia infection.  Murray described chlamydia as a bacteria that
is transferred from one person to another during sexual contact or through
pregnancy and childbirth.  In the case of
transmission through pregnancy and childbirth, Murray testified the infection
would resolve itself within three years. 
Although Norma had chlamydia in 2001, the year Jessica was born, Murray
opined the infection Jessica had at the time of the sexual assault was the
result of sexual contact. 

                        DNA testing was
performed on Gallegos and Jessica. 
Jessica’s DNA could not be excluded from DNA found on Gallegos’s penis
and right thumb.  Gallegos’s DNA was
found in Jessica’s vulva. 

 

>Pretrial Motion and Hearing

                        Prior to trial, both
parties filed motions in limine to
determine the admissibility of Gallegos’s statement to police.  Gallegos claimed Lima violated his >Miranda rights by failing to get an
express waiver of those rights before questioning.  Gallegos also asserted that his statement was
involuntarily made by focusing on his moderate consumption of alcohol and illiteracy
in Spanish, and Lima’s limited understanding of Gallegos’s particular Spanish
dialect, Lima’s multiple statements that it would be better for Gallegos if he
told the truth, and the fact Lima obtained Gallegos’s signature on the >Miranda advisement form after Gallegos
made some incriminating statements. 

                        The prosecution claimed
the record demonstrated compliance with Miranda
because Lima explained each of Gallegos’s Miranda rights and Gallegos said he understood each right and
wished to talk to the officers.  The
prosecution also argued there was no evidence of coercion or promises of
leniency, pointing to Gallegos ability to function as an adult who was
gainfully employed, renting an apartment, and providing for his family, his
general demeanor during the interview, and the fact Lima made no overt promises
of leniency, as evidence Gallegos understood his rights and voluntarily waived
those rights to make a statement. 

                        The trial court
conducted an evidentiary hearing and
took Lima’s testimony.  Lima, a 15-year
veteran of the Santa Ana Police Department, testified he is a native-born
Spanish speaker from Guatemala.  He is
certified by the Santa Ana Police Department as a Spanish/English translator at
the highest grade level available in the department.  While Lima acknowledged the differences in
“dialect and the culture” of various Spanish-speaking populations in Mexico and
Central and South America, he believed Gallegos understood him throughout the
interview. 

                        Lima said Gallegos had
been handcuffed initially, but Ribeiro removed the handcuffs for the duration
of the interview.  He instructed Gallegos
to indicate whether he understood his rights, and Gallegos responded affirmatively
to each right as explained. 

                        Lima denied making any
promises or threatening Gallegos to obtain his statement.  He acknowledged that Gallegos told him he had
consumed two beers that night, but stated Gallegos did not appear or act
intoxicated.  According to Lima, the
conversation was clear and Gallegos responded appropriately to each
question.  He also noticed that Gallegos
seemed to understand some English words because he corrected the officers
understanding at various points. 

                        At the conclusion of the
hearing, the trial court stated she had read the parties’ point and authorities
and the parties’ respective transcripts of the interview.  The defense had relied on >In re Shawn D. (1993) 20
Cal.App.4th 200 (Shawn D.), but
the court found this case inapt:  “I
understand the point you’re making, but you are relying heavily on the
officer’s statement to the defendant that it would be in his favor to tell the
truth.  And in Shawn D., the officer made it clearly an either/or.  [¶] . . .[¶] This goes more
than one step forward.  It goes 2 miles
forward.” 

                        Ultimately, the trial
court held, “having looked at the transcript, both of them.  And it wasn’t coercive.  It just wasn’t coercive.  And the statements that were made were
voluntarily made with full knowledge of what the defendant’s rights were.  [¶] As far as an express waiver is concerned,
well, you could have knocked me over with a feather when the Supreme Court says
it’s okay not to get one, but they said it years ago.  So even though your allegation is that there
was no express waiver because there was no verbal waiver, the officer’s
testimony I think is credible that there was some indication by demeanor or a
nod of the head that that was a waiver . . . an express
waiver is not necessary for the statements to be determined to have been
voluntarily made.” 

 

DISCUSSION

 

                        The trial court denied
Gallegos’s motion to exclude his postarrest statement, and Gallegos argues the
trial court violated his rights under Miranda
and the Fifth Amendment by admitting his confession at trial.  We disagree.

name="SDU_3">                        “In reviewing Miranda
issues on appeal, we accept the trial court’s resolution of disputed facts and
inferences as well as its evaluations of credibility if substantially
supported, but independently determine from undisputed facts and facts found by
the trial court whether the challenged statement was legally obtained.
[Citations.]”  (People v. Smith
(2007) 40 Cal.4th 483, 502.) 

                        According to the record,
Lima explained each of Gallegos’s rights under Miranda.  Gallegos
affirmatively responded that he understood each of these rights>, and then he indicated a willingness to
talk to the officers.  Lima did not exact
an express waiver of rights.  However,
Gallegos nodded his head in agreement when asked if he wanted to talk and then
answered the officers’ questions. 

                        While an implied waiver
is sufficient to satisfy the constitutional standard (Berghuis v. Thompkins (2010) 560 U.S.370, __ [130 S.Ct.
2250, 2259-2262]), the record must establish Gallegos understood his rights and
acted in a manner consistent with a voluntary waiver.  “As a general proposition, the law can
presume that an individual who, with a full understanding of his or her rights,
acts in a manner inconsistent with their exercise has made a deliberate choice
to relinquish the protection those rights afford.”  (Id. at p. ___ [130 S.Ct. at p.
2262].)  In sum, when “the prosecution
shows that a Miranda warning was given and that it was understood by the
accused, an accused’s uncoerced statement establishes an implied waiver of the
right to remain silent.”  (>Ibid.)

                        To determine if Gallegos
fully understood and validly waived his Miranda
rights, we consider factors such as the presence or absence of false
promises or coercion by the police, the duration and location of the
interrogation, and the defendant’s age, education, and mental health.  (People v. Williams (1997) 16 Cal.4th
635, 660-661; see also People v. Thompson (1990) 50 Cal.3d 134,
167.)  We consider these factors in light
of the totality of the circumstances.  (>People v. Lewis (2001) 26
Cal.4th 334, 383-384.)

                        Gallegos argues Lima
coerced his statement by saying it would be better for Gallegos to tell the
truth.  However, a mere suggestion name=SearchTerm>“that it would be better to tell the truth,
when unaccompanied by either a threat or a promise, does not render a name="SR;39005">confession involuntary.  [Citation.]” 
(People v. Davis (2009) 46
Cal.4th 539, 600.)  Lima suggested
it would be better to tell the truth, and Gallegos in essence agreed.  There is no evidence of badgering, implied
promises of leniency, or deception on the part of either police officer
involved in the interview.

                        Gallegos’s heavy
reliance on Shawn D., supra, 20 Cal.App.4th 200 is misplaced.  In Shawn D., the officer was
conducting a three-hour interrogation of a 16 year old suspected of
burglary.  He repeatedly told the minor,
among other things, that he was putting his girlfriend in a precarious
situation and the officer did not want to see her get in trouble.  (Id.
at p. 207.)  The officer also said
the police report would reflect whether or not the defendant was cooperative,
and within the context of the defendant being tried as an adult, the officer
indicated, “‘Seriously, you help us get
the stuff back and I will personally talk to the [district attorney] or persons
who do the juvenile.’”  (>Id. at pp. 204-207.)  The appellate court held the confession was
involuntary because “[t]he promise of leniency in exchange for a confession
permeated the entire interrogation.”  (>Id. at p. 216.) 

                        The differences between
the present case and Shawn D. are patent and
numerous.  Lima suggested truthfulness
would be best.  He did not insist on a
confession, promise Gallegos anything for his statements, or use some type of
ruse to loosen Gallegos’s tongue.  This
case does not involve coercion, the forceful overbearing of Gallegos’s will, or
false promises of some benefit attached to his confession.

                        As for illiteracy and
the fact Gallegos was born in Mexico, we also note that Gallegos was 36 years
old, employed, and supporting a family of six. 
Nothing in the record suggests Gallegos was unintelligent, mentally
deficient, or incapable of understanding his rights.  Furthermore, nothing supports Gallegos claims
of intoxication.  To the contrary, the
DVD of the interview shows a man who appears sober and relaxed and who responds
appropriately to questions. 

                        Gallegos’s reliance on >Hutto v. Ross (1976) 429 U.S. 28 (>Hutto) is also misplaced.  As the Hutto
court observed, the only question there was “whether a confession is >per se inadmissible in a href="http://www.fearnotlaw.com/">criminal trial because it was made
subsequent to an agreed upon plea bargain that did not call for such a
confession.”  (>Id. at p. 30.)   This case does not involve a confession made
pursuant to plea bargain, and there is no evidence Lima promised Gallegos
anything in exchange for his statement. 
(See id. at p. 30.)name=F00331976141336>

                        Finally, nothing in the
DVD or written transcripts supports the conclusion Gallegos misunderstood
Lima.  In fact, the purported confusion
about circumcision actually demonstrates the opposite.  Gallegos understood Lima well enough to tell
him how he tore his foreskin, thus evidencing some comprehension of the word
Lima had trouble translating.  When the
record is viewed as whole, Lima’s questions engendered an appropriate response
by Gallegos.  In other word, there is no
evidence Gallegos misunderstood Lima, or had trouble comprehending what Lima
sought to convey.  name="SDU_5">

                        As the evidence supports
the trial court’s determination Gallegos made an implied waiver of his name="SR;2809">Miranda rights, and as there is no evidence that his
“‘will was overborne’” at the time he confessed (People
v. Cruz (2008) 44
Cal.4th 636, 669), Gallegos’s claims that his confession
was involuntary and violated Miranda
are rejected.

 

DISPOSITION

 

                        The judgment is
affirmed.

 

 

 

                                                                                    THOMPSON,
J.

 

WE CONCUR:

 

 

 

RYLAARSDAM,
ACTING P. J.

 

 

 

MOORE, J.