P. v. Leiva

Filed 7/27/07 P. v. Leiva CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer, Judge.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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By information filed July 31, 2006,^[1] appellant Jose Leiva was charged with three counts of committing a lewd or lascivious act against a child under the age of 14 (Pen. Code, 288, subd.(a); counts 1, 2, 3). A jury convicted appellant on all counts, and the court imposed a prison sentence of three years, consisting of the three-year lower term on count 1 and concurrent three-year terms on each of the remaining counts.

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant himself, in response to this courts invitation to submit supplemental briefing, has submitted a brief in which he argues, as best we can determine, that (1) the court erred in denying his pretrial motion to exclude statements he made to police, and (2) the evidence was insufficient to support the instant convictions.

FACTS

City of Bakersfield Police Officer Patrick Mara and his partner Officer Sherman were on patrol on East 9th Street in Bakersfield on July 11, when, at approximately 11:45 p.m., they observed a car parked facing the wrong way. Officer Sherman shined a spotlight on the car, and appellant, who was sitting in the drivers seat, immediately ducked down.

Shortly thereafter, appellant and 13-year-old Jacqueline V. (Jacqueline) got out of the car and began to walk away. Jacqueline was wearing only blue underwear and a white tank top over a black bra. The officers made contact with appellant and Jacqueline, and at some point thereafter, Jacqueline told an investigating officer that she had had sex with appellant on at least two occasions. The police took appellant into custody.

City of Bakersfield Police Detective Jamie Montellano questioned appellant and Jacqueline separately, during the early morning hours of July 12.^[2] Jacqueline told the detective that she (Jacqueline) and appellant had been together since May 6, the date appellant asked her to to be his girlfriend, and that she had had sex with appellant between 10 and 20 times. Appellant told the detective Jacqueline was his girlfriend and that he had had sex with her [m]aybe more than two times.

Jacqueline testified that she never had sex with appellant, and that she told the police otherwise because [she] was nervous.

DISCUSSION

Appellants Contentions

Prior to trial, appellant moved to exclude statements he made during his July 12 interrogation, on the grounds that his statements were involuntary and were obtained in violation of Mirandav.Arizona (1966) 384 U.S. 436 (Miranda). The court conducted an evidentiary hearing, at which Detective Montellano was the sole witness, and thereafter denied the motion.

In the brief appellant himself filed, he asserts: When I was first taken in for questioning by the police detective, it was all conducted in [E]nglish which I did not speak nor understand clearly. The detective gave me my rights in [E]nglish and at no time did he [sic] provide the services of an interpreter. . . . [] [A]t no time was I offered the assistance of an interpreter. I asked for one[.] [H]owever[,] the detective kept telling me it would take a long time for one to arrive and that if [I would] just talk with her I could go home soon. As best we can determine, the foregoing constitutes a claim that appellants ability to understand English was so limited that (1) his July 12 confession was involuntary, and (2) his waiver of his Miranda rights that preceded his confession was invalid, and therefore the court erred in refusing to exclude his confession and other statements. These contentions are without merit.

Under both the United States and California Constitutions, an involuntary confession is inadmissible. (People v. Massie (1998) 19 Cal.4th 550, 576.) And under both state and federal law, the totality of circumstances test is used to determine the voluntariness of a confession. (Withrow v. Williams (1993) 507 U.S. 680, 693-694 [123 L.Ed.2d 407, 420]; People v. Massie, supra, 19 Cal.4th at p. 576.) On appeal, we review the trial courts determination that a confession was voluntary by independently examining the record, but to the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence. (People v. Weaver (2001) 26 Cal.4th 876, 921.)
Miranda holds that a suspect is entitled to be (1) advised of certain constitutional rights prior to any custodial interrogation (Miranda, supra, 384 U.S. at pp. 467-474), (2) questioned only if he voluntarily, knowingly and intelligently waives these rights (id. at pp. 475-476), and (3) allowed to cut off questioning at any time by indicating he wants an attorney or wishes to remain silent (id. at p. 474). In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendants rights under [Miranda], we accept the trial courts resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. (People v. Wash (1993) 6 Cal.4th 215, 235.)

At the hearing on appellants motion to exclude statements he made during his interrogation, Detective Montellano testified that in advising appellant of his rights, the only thing that he didnt understand . . . was the word attorney, and that once she explained that word was synonymous with lawyer, she and appellant were able to communicate . . . very easily. We have reviewed the transcript of the interrogation, and it indicates that although at the outset of the interrogation appellant exhibited some apparent confusion as to the meaning of his right to remain silent and the word attorney, once the detective told appellant that she would get somebody to do this, but [w]ell just have to wait here for a couple of hours, appellant no longer appeared to be confused. We note also that the transcript does not support appellants claims that he requested an interpreter and that Detective Montellano told him that if [he would] just talk with her [he] could go home soon.^[3] The record thus supports the conclusion that appellants ability to speak and understand English was not so limited that it rendered his statements involuntary or his waiver of constitutional rights invalid.

Appellant also asserts that The detective kept telling me that I could go home and everything is going to be okay if you just say something about the crime, and The detective kept questioning me and telling me that I could go home and that everything would be al[l]right if I just said something. By these statements, we understand appellant to be making the claim that his statements to the detective were involuntary because they were elicited by a promise of leniency and/or benefit. (See People v. Holloway (2004) 33 Cal.4th 96, 115 [a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied].) Insofar as the interrogation transcript reveals, the detective never made the statements appellant ascribes to her. Assuming for the sake of argument such statements would have rendered his statements involuntary, appellants argument fails because it is not supported by the record. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 [review on a direct appeal limited to appellate record].)

Finally, appellant asserts, I did not do these crimes. We interpret this statement as a challenge to the sufficiency of the evidence.

In reviewing [such a challenge], we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] [T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Davis (1995) 10 Cal.4th 463, 509.)

The evidence of Jacquelines statements to Detective Montellano on July 12 that she and appellant had been together since May 6 and that she had had sex with appellant between 10 and 20 times was sufficient to establish that, as charged, between May 6 and July 11, appellant committed three violations of Penal Code section 288, subdivision (a).

Independent Review of the Record

We have independently reviewed the record and based on that review, we have concluded that no reasonably arguable legal or factual issues exist.

DISPOSITION

The judgment is affirmed.

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^* Before Wiseman, Acting P.J., Levy, J., and Cornell, J.

^[1] References to dates of events are to dates in 2006.

^[2] Video/audio tapes of both interrogations were played for the jury. Transcripts of the tapes are part of the clerks transcript on appeal.

^[3] With respect to the latter claim, the transcript indicates Detective Montellano told appellant, falsely, the following: Jacqueline was pregnant; a chemical test would be performed to determine if appellant was the father; and the results of the test would be available in 20 minutes. Appellant asked the detective if he would be allowed to go home if the test showed he was not the father. Detective Montellanos response was inaudible . . . .