P. v. Loaeza

 

 

 

 

 

 

 

 

 

 

Filed 8/8/13  P. v. Loaeza 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.   RULIN HERNANDEZ LOAEZA,         Defendant and Appellant.

G047018            (Super. Ct. No. 09NF3583)            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, Sheila F. Hanson, Judge.  Affirmed as modified.

                        Michael B. McPartland,
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, Stephanie Chow and James D. Dutton, Deputy
Attorneys General, for Plaintiff and Respondent.

 

                        A jury convicted
defendant Rulin Hernandez Loaeza of two counts of href="http://www.mcmillanlaw.com/">oral copulation by force (Pen. Code, §
288a, subd. (c) (2) (A);href="#_ftn1"
name="_ftnref1" title="">[1]
counts 1 and 3), two counts of criminal threats (§ 422; counts 2 and 4), and
one count of simple assault (§ 240), a
lesser included offense of attempted oral copulation by force (§§ 664, subd.
(a), 288a, subd. (c) (2) (A); count 5). 
The jury also found Loaeza committed the offenses in counts 1 and 3
against more than one victim (§ 667.61, subds. (c) and (e) (4)).

                        The court sentenced
Loaeza to a total prison term of 32 years to life, consisting of a determinate
two-year term on count 2, plus consecutive indeterminate 15-to-life terms on
each of counts 1 and 3, a concurrent term of 16 months on count 4, and a
concurrent term of six months on count 5.

                        Loaeza contends certain
pretrial statements were obtained in violation of his rights under >Miranda
v. Arizona (1966) 384 U.S. 436 (Miranda) and improperly
admitted into evidence at trial.  Loaeza
also contends the sentences imposed on counts 2 and 4 must be stayed under
section 654.  We agree with his latter
contention only, order the sentences on counts 2 and 4 stayed, and affirm the
judgment in all other respects. 

 

FACTUAL BACKGROUND

 

>1. 
R.F. (Counts 1 and 2)

>                        Around
7:00 p.m. in early November 2009,
R.F. saw Loaeza, whom she did not know, at a cell phone store in Garden
Grove.  A short
time later, Loaeza offered R.F. a ride home and she accepted.

                        After driving less than
15 minutes, Loaeza stopped his car in a deserted area, jumped on top of R.F.,
told her he had a knife, and said if she “[didn’t] suck his dick, [she was]
going to die.”  R.F. initially refused
and resisted but ultimately complied because she believed Loaeza would kill
her.

                        Once Loaeza ejaculated
in her mouth, R.F. got out of the car, ran away, went to a police station and
reported the sexual assault.  The next
day R.F. saw Loaeza’s car parked near the cell phone store, wrote down the
license plate number and gave it to the police. 
R.F. identified Loaeza in court as the man who assaulted her.

 

>2. 
S.D.  (Counts 3 and 4)

                        About 10:35 p.m. in November 2009 Loaeza and S.D.
were found in the back of his parked car. 
Loaeza was sitting on the driver’s side rear seat and S.D. was lying
across the rear seat with her head towards the driver’s side.  Loaeza had his pants down and his penis was
exposed. 

                        When a deputy sheriff
opened the rear passenger door S.D. got out and said, “Thank, God, you’re
here.  He threatened to kill me and he
has a knife.”  A used condom was found on
the floor below Loaeza’s feet and there appeared to be a semen stain on the
rear seat.  A folding pocket knife with
the blade locked open was found between the driver’s seat and the center console.

 

>3. 
M.M.  (Count 5)

                        Sometime after 11:00 p.m. in early December 2007, M.M. was
approached by Loaeza near the gate in back of her home.  He asked her if Francisco Zamora lived
there.  When M.M turned to open the gate,
Loaeza pulled her hair with one hand and grabbed her vagina with his other
hand.  M.M. screamed and he let go and
ran away.  Loaeza was not wearing shoes
at the time, but a pair of sandals with his DNA on them were later found in
front of M.M.’s home.  M.M. identified
Loaeza in a photographic lineup as the man who assaulted her.

 

>4. 
Loaeza’s Pretrial Statements

                        On December 14, 2009 Loaeza went to the Anaheim
Police Department and was interviewed by Detective Wang about the S.D. and R.F.
incidents.  The interview lasted for
about 50 minutes and was videotaped. 
Wang did not advise Loaeza of his Miranda
rights before or during the interview. 

                        At the outset, Wang told
Loaeza he was not under arrest, did not have to talk to Wang, and could stop
the interview and leave anytime.  Loaeza
acknowledged he was there of his own free will. 
A second officer was present but stayed outside and could not be seen
from inside the interview room.  Loaeza
was not handcuffed and the interview room door was not locked.

                        After collecting
personal information and discussing Loaeza’s interest in joining the military,
Wang questioned him about the incident involving S.D.  Later Wang showed him a photo of R.F.  Loaeza initially denied knowing R.F., but
eventually admitted having a conversation with her outside a cell phone
store.  He repeatedly denied going
anywhere with R.F.

                        Wang then told Loaeza
surveillance cameras showed Loaeza went somewhere with R.F., and beginning
about 30 minutes after the interview began, the following exchange occurred:

                        “Q:  Okay, you guys went somewhere in your
car.  You drove north on Harbor together,
okay?  Do you know there are businesses
at different locations?

                        “A:  Uh huh.

                        “Q:  Most businesses have cameras, okay?  Just because you guys walk away from Metro
PCS, I only need to know which direction you guys walked to, I can access–I can
go to look at other cameras.  There’s
also cameras on every intersection.  You
know, I don’t know if you ever noticed that, but there’s a little camera on top
of the light, okay?

                        “A:  The lights?

                        “Q:  I only need to know which direction you guys
went to, and what time, and I can go back and look at the cameras, okay?  So, with that said, would you like to tell
me–would you like me to tell you what I saw in the camera, or would you like to
be honest and tell me what happened today? 
I know exactly what happened.  And
I talked to her.  And now you’re telling
me nothing happened, and I’m telling you that’s not the truth, okay?  Why don’t you tell me?  You’ve been honest so far with, with the
other girl.  And I believe you with the
other girl.  But this one, you know, at
the Metro PCS girl, that you’re not telling me everything.  So why did you stop?

                        “A:  Well–

                        “Q:  Why, why didn’t you tell me the whole truth
about the other girl, the second one, the one that you met at the Metro
PCS?  The one that you guys–you know,
don’t know who you are–she is?  Tell me,
what happened?

                        “A:  Can I ask you a favor, sir?

                        “Q:  Sure.

                        “A:  Can, uh, can I come like tomorrow for sure?

                        “Q:  What’s that?

                        “A:  Can I come tomorrow?

                        “Q:  Why? 
Why do you want to come back?

                        “A:  ‘Cause–well, ‘cause I want, like, like, I’m,
I’m, I’m, I’m not feeling, like, all right. (..?)

                        “Q:  Okay, that’s fine, but–

                        “A:  I’ll, I’ll come back–

                        “Q:  Well–

                        “A:  --even if I have to miss work, you know?

                        “Q:  Rulin. . . .  

                        “A:  To tell you the truth.  I’m, I’m going to put my mind–

                        “Q:  Rulin . . .

                        “A:  -- and think about it right.

                        “Q:  You just have to tell me the truth,
okay?  You don’t have to think about what
to tell me.

                        “A:  Yeah.

                        “Q:  Just tell me the truth.

                        “A:  That’s what I’m telling you.

                        “Q:  Okay. 
If I give you time to think about it, you’re going to come up with some–


                        “A:  No I won’t.

                        “Q:  -- lies.

                        “A:  I won’t, I promise.  I’ll give you what you, what you want to
hear, when–what you, what you know already.

                        “Q:  I don’t want to hear what you want me to
hear.  I want you to tell me what
happened.

                        “A:  That’s what I’m telling you.

                        “Q:  Yeah, I know what happened, okay?  Why wouldn’t you want to tell me what
happened?

                        “A:  Oh, I’m scared.

                        “Q:  You’re scared?  Scared about what?

                        “A:  I don’t know.

                        “Q:  Did you do something wrong?

                        “A:  Not wrong.

                        “Q:  Okay, then tell me.

                        “A:  Can I please come back tomorrow?  I, I promise I’m going to come back any time
you want.

                        “Q:  Okay, but we’re not done yet.

                        “A:  Okay.

                        “Q:  I’m not done yet.

                        “A:  Okay.

                        “Q:  Do you want me to tell you what happened?

                        “A:  Yes. 
And I’ll say if it’s right or not.

                        “Q:  Okay. 
You drove–you gave her a ride.

                        “A:  Yes, sir.

                        “Q:  The bus didn’t come, she took the ride.  Okay? 
She told you that she lives, yes, in Anaheim.  You guys went on Harbor.  You guys went to Santa Ana, and then you made
a turn, Santa Ana Street, and you made a turn. 
She said, ‘Wait a second, you did the wrong turn.’”

                        This entire exchange
lasted about three and one-half minutes. 
Wang never yelled at Loaeza or threatened him in any way.  Thereafter, the interview continued for
another 16 minutes and Loaeza never repeated his request to come back the next
day.  During this portion of the
interview, the questions and answers continued much as before the exchange
quoted above.  Loaeza confirmed certain
details of the incident involving R.F. but denied others.  Loaeza eventually admitted he forced her to
orally copulate him but insisted he did not have a knife, did not say he was
going to kill R.F., and did not hit her. 
At the conclusion of the interview Wang arrested Loaeza.

                        Additional facts
relating to Loaeza’s challenged pretrial statements are set out in the
procedural background and discussion sections below.

 

PROCEDURAL BACKGROUND

 

                        At trial Loaeza moved to
suppress the statements he made to Wang after the exchange quoted above, on the
grounds those statements were obtained in violation of his Miranda rights.href="#_ftn2"
name="_ftnref2" title="">[2]  Before the jury was selected, Wang testified
as to the circumstances surrounding the interview and the court reviewed the
interview videotape.  Following the
arguments of counsel, the court took the matter under submission and reviewed
the interview videotape again.  The next
day the court denied the motion to suppress the challenged statements and found
Loaeza was never in custody for purposes of Miranda
based on the totality of the circumstances. 
At trial the prosecutor introduced both the interview videotape and a
transcript of the interview into evidence. 


 

DISCUSSION

 

>1. 
Miranda

                        Loaeza contends his
convictions for oral copulation by force and criminal threats arising out of
the R.F. incident (counts 1 and 2) must be reversed because the trial court
erroneously denied his motion to suppress
and admitted the challenged pretrial statements into evidence.  Specifically, he argues the trial court erred
in finding he was never in custody for purposes of Miranda.  We disagree. 

                        “In considering a claim
that a statement or confession is inadmissible because it was obtained in
violation of a defendant’s rights under Miranda
v. Arizona, supra, 384 U.S. 436,
the scope of our review is well established. 
‘We must accept the trial court’s resolution of disputed facts and
inferences, and its evaluations of credibility, if they are substantially
supported.  [Citations.]  However, we must independently determine from
the undisputed facts, and those properly found by the trial court, whether the
challenged statement was illegally obtained.’ 
[Citations.]  We apply federal
standards in reviewing defendant’s claim that the challenged statements were
elicited from him in violation of Miranda.  [Citations.]” 
(People v. Bradford (1997) 14
Cal.4th 1005, 1032-1033; see also People
v. Waidla (2000) 22 Cal.4th 690, 730.)

                        Custody for >Miranda purposes is a mixed question of
law and fact.  (People v. Moore (2011) 51 Cal.4th 386, 395.)  An appellate court must apply a deferential
substantial evidence standard to the trial court’s factual findings regarding
the circumstances surrounding the interrogation, and it must independently
decide whether, given those circumstances, a reasonable person in the
defendant’s position would have felt free to end the questioning and leave.  (Ibid.)

                        In making an objective
assessment of the Miranda custody
issue, the linchpin is whether a reasonable person in the particular
circumstances would feel his freedom of movement has been restricted to the
degree associated with formal arrest.  (>Yarborough v. Alvarado (2004) 541 U.S.
652; Berkemer v. McCarty (1984) 468
U.S. 420, 440.)  The standard is an
objective, reasonable man standard — not the subjective views of the police or
the “suspect.”  (People v. Stansbury (1995) 9 Cal.4th 824, 830.) 

                        The following are
objective “indicia of custody for Miranda
purposes:  (1) whether the suspect has
been formally arrested; (2) absent formal arrest, the length of detention; (3)
the location; (4) the ratio of officers to suspects; and (5) the demeanor of
the officer, including the nature of the questioning.”  (People
v. Foster (1994) 29 Cal.App.4th 1746, 1753.)  The determination is made on the unique facts
of each case, based on the totality of the circumstances —  no one fact is dispositive.  (California
v. Beheler (1983) 463 U.S. 1121, 1125; People
v. Boyer (1989) 48 Cal.3d 247, 272.)

                        In this case the trial
court concluded “there was nothing coercive about the beginning of the
interview.”  The trial court found Loaeza
voluntarily scheduled the interview, he voluntarily drove his own car to the
Anaheim Police Department, he was questioned by one detective in plain clothes
in a nondescript office, he was not in handcuffs, and the interview room door
was unlocked.  The trial court also found
Wang told Loaeza at the outset he was not under arrest, did not have to talk to
Wang, and was free to go. 

                        Under these
circumstances a reasonable person would not feel his freedom of movement had
been restricted to the degree associated with a formal arrest. 

The
fact that roughly three-fifths of the way through the interview Loaeza asked
two questions about coming back the next day did not materially alter these
circumstances.  In response to Loaeza’s
first question about coming back the next day, Wang said “Okay, that’s fine,
but. . . .”   
In response to Loaeza’s second question about coming back the next day,
Wang said, “Okay, but we’re not done yet.” 
More importantly, after those two questions, Loaeza agreed to let Wang
tell him what happened, and the interview continued uninterrupted without any
further indication Loaeza wanted to leave. 
In fact, as the trial court noted, Loaeza felt sufficiently comfortable
to correct Wang’s version of events in the questioning that followed.

                        Loaeza points out the
accusatory or nonaccusatory nature of the questioning is another relevant
factor to consider.  (>People v. Aguilera (1996) 51 Cal.App.4th
1151, 1162, 1164 (Aguilera).)  But Loaeza’s reliance on Aguilera is misplaced.  Here
unlike in Aguilera, there was no
“‘tag team’” interrogation, the interview lasted 47 minutes — not two hours,
and the questioning was never “intense, persistent, aggressive,
confrontational, accusatory, and, at times, threatening and intimidating.”  (Id. at
pp. 1164-1165.)

                        Here the nature of the
questions was not accusatory, even though Wang told Loaeza he did not believe
portions of Loaeza’s story.  As the trial
court put it, “taken in its entirety, the . . . questioning
was [not] likely to create a coercive environment in which the defendant did
not feel free to leave.”  Finally, we
note the trial court specifically found, “I did not believe there was anything
about the tone of the officer’s voice or any other action that implied that the
defendant’s compliance with the questioning might be compelled.”  

                        In sum, we agree with
the trial court.  Nothing happened during
the interview “that would make an objective, reasonable person believe that
something . . . changed from the beginning . . . [when]
Wang made clear to the defendant that he didn’t have to be there and didn’t
have to talk.”  Thus, Loaeza was never
“in custody” for purposes of Miranda
and the interview was properly admitted into evidence.

> 

>2. 
Section 654

>                        Loaeza
next contends section 654 required the trial court to stay the sentences for
his criminal threats convictions in counts 2 and 4, because those offenses were
committed with the same intent and objective as his oral copulation by force
convictions in counts 1 and 3.  The
Attorney General agrees and so do we.

 

DISPOSITION

 

                        The judgment is modified
to stay the sentences on counts 2 and 4 under section 654.  The clerk of the Orange County Superior Court
shall prepare an amended abstract of judgment reflecting this modification, and
send a certified copy to the Department of
Corrections and Rehabilitation.  As
so modified, the judgment is affirmed.

 

                                                                                   

                                                                                    THOMPSON,
J.

 

WE CONCUR:

 

 

O’LEARY, P.
J.

 

 

 

BEDSWORTH, J.