P. v. Mena

 

 

 

 

 

 

 

 

 

 

 

 

Filed 10/17/13  P. v. Mena CA2/6

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
SIX

 

 
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THE PEOPLE,       Plaintiff and Respondent,   v.   EDGARDO OTTONIEL MENA,       Defendant and Appellant.

2d Crim. No. B243872 (Super. Ct. No. BA377299) (Los Angeles County)

 

                        Edgardro Ottoniel Mena
appeals his conviction by jury of four counts of lewd acts upon a child under
the age of 14 (counts 1-3 & 9; Pen. Code, § 288, subd. (a))href="#_ftn1" name="_ftnref1" title="">[1],
three counts of aggravated sexual assault
of a child by means of rape  (counts
4-6; § 269, subd. (a)(1)), and two counts of aggravated sexual assault of a
child by means of forcible oral copulation (counts 7- 8; § 269, subd. (a)(4))
with special findings that appellant committed the offenses against more than
one victim (§ 667.61, subd. (c)).  The trial
court denied probation and sentenced appellant to 105 years to life state
prison.   We affirm.

                        Viewed in a light most
favorable to the judgment (People v. Johnson (1980) 26 Cal.3d 557, 576),
the evidence shows the following:
clear=all >


Counts 1 through 8 - Y. D.

                        During the 2009-2010 school year, 11-year-old
Y. D. lived with her parents, her step grandparents, and appellant, her
step-uncle.  Appellant touched Y.'s
vagina on the outside of her clothes and, on other occasions, touched her under
her clothing.   Appellant warned Y. that
if she told anyone, her step-grandmother would die and there would be
"problems at the house."  Y.
knew that the grandmother was in poor health and that "problems at the
house" meant that his stepfather would get "crazy" and there
would be physical fights.  Y. was scared
and told no one. 

                        Appellant put his penis
in her vagina on at least three occasions. 
The first time, appellant pushed Y. onto his bed, pulled down her pants,
restrained her hands, and pushed his penis into her vagina. 

                        The next time, appellant
entered Y.’s bedroom when Y. and her brothers were asleep.  Appellant kept the lights off and pushed his
penis into her vagina. Y. was too scared to scream or call out for help.  It happened on a Saturday night, while the
adult  family members were playing cards
and drinking in the garage.

                        On three other
occasions, appellant forced Y. to orally copulate him.  Appellant pushed her down on her knees,
forced his penis into her mouth, and pushed on her head until he ejaculated. 

                        The third rape occurred
when Y.'s parents left the house to pay the rent.  Appellant locked Y. in his bedroom, put her
face down on the bed, pulled her sweat pants down, and put his penis in her
vagina.  When a family member came
looking for Y., appellant went out the back door.  The stepfather screamed at Y. and demanded to
know why she was in appellant's room.  Y.
was too scared to answer.

                        The next week, Y. told
her teacher that appellant was putting his private parts into her private
parts.  Y. also spoke to the police. 

                        Los Angeles City Police
Detective Brenda Salazar  arrested
appellant several months later.  After
advisement and waiver of his constitutional
rights; appellant said that Y. would come into his bedroom, lie on the bed,
and touch his penis.  Appellant stated
that Y. was to blame and that she had sexual intercourse with him on two
occasions. 

On
three other occasions, Y. touched his penis and orally copulated him.  Appellant admitted that it was against the
law and said that he learned his lesson after the family broke up because of
what he and Y. had done.

Count 9 - Ana L..

                         Ana L. 
testified that appellant molested her in 2003 when she was four years
old.  Ana's father worked with appellant
and gave him a ride home after a party. 
Appellant sat in the back seat where Ana and Ana's baby sister were
riding.  Ana awoke to find her pants
unbuttoned.  Appellant laughed, touched
her vagina, and pretended he was tickling her. 


                        Ana's father, Eduardo
M., saw appellant moving his hand, stopped the car, and saw that Ana's pants
were unbuttoned.  Eduardo asked what
happened. Ana replied, "This guy touched me here," pointing to her
vagina.  Eduardo pulled appellant out of
the car and hit him as he fled.  Ana was
taken to the hospital and underwent a SART examination. 

Miranda

                        Appellant argues that
his statement is inadmissible because he was not immediately advised of his Miranda
rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]) when
first arrested.  Appellant forfeited the
error by not specifically raising it at trial. 
(People v. Michaels (2002) 28 Cal.4th 486, 512; People v. Ray (1996)
13 Cal.4th 313, 339.)

                        On the merits,
appellant's statement was properly admitted. 
A custodial interrogation occurs for Miranda purposes where the
suspect is in custody and asked questions reasonably likely to elicit an
incriminating response.  (Rhode Island
v. Innis (1980) 446 U.S. 291, 300-301 [64 L.Ed.2d 297, 307-308].)  Appellant was not interviewed until he
arrived at the police station.  Before
advising him of his Miranda rights, Detective Salazar asked appellant
where he lived and where he worked.  Miranda
warnings are not required for routine background or booking questions (People
v. Andreasen  (2013) 214 Cal.App.4th
70, 86-87.)

                        Appellant was then
advised of his Miranda rights and asked "do you know why the police
. . . want to talk to you?" 
Appellant said that he used to live with his brother's family  and that Y. would come to his bedroom for
help with her school work. 

                        Detective Salazar said
that Y. was in love with him and "she told me what happened between you
two . . .  when the mom was not
there."  Appellant admitted that Y.
would sit on his bed and touch his private parts when he was drunk.  Detective Salazar said, "I need to know
. . . if it was a mistake, [and that] . . . there are programs we can put you
in, to get you some help." 

                        Appellant argues that it
was a coercive interrogation because
Detective Salazar "softened" him up and took a sympathetic approach
to elicit incriminating statements.  The
use of deceptive comments and psychological ploys do not undermine the
voluntariness of a defendant's  statements.  (People v. Williams  (2010) 49 Cal.4th 405, 443.) " 'Once a
suspect has been properly advised of his rights, he may be questioned freely so
long as the questioner does not threaten harm or falsely promise benefits.  Questioning may include exchanges of
information, summaries of evidence, outline of theories of events, confrontations
with contradictory facts, even debate between police and suspect. . . .'  [Citation.]"  (People v. Halloway (2004) 33 Cal.4th
96, 115.) 

                        We have reviewed the Miranda
interview which was recorded and transcribed. 
No promises were made and there is no evidence that appellant was led to
believe that he might reasonably expect more lenient treatment if he
confessed.  (People v. Hill (1967)
66 Cal.2d 536, 549.)  Appellant makes no
showing that he was tricked or coerced, or that his due process rights were
violated.  (People v. Linton (2013)
56 Cal. 4th 1146, 1172; People v. Williams, supra, 49 Cal.4th at pp. 436-437.)  Nor were Detective Salazar's efforts to
establish a rapport with appellant a coercive police tactic violative of the
Fifth Amendment. (People v. Bradford (1997) 14 Cal.4th 1005, 1043.)

                        The alleged error, if
any, in admitting appellant's statement was harmless beyond a reasonable
doubt.  (Chapman v. California (1967)
386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; Arizona v. Fulminante (1991)
499 U.S. 279, 306-310 [113 L.Ed.2d 302, 328-331]; People v. Johnson
(1993) 6 Cal.4th 1, 32-33.)  Y.'s
testimony was corroborated by her statements to her godmother, school
authorities, and the police.  Appellant's
brother suspected that something was going on and confronted Y., as did the
step-grandmother. 

                        The jury was instructed
that appellant's statement should be considered with caution (CALCRIM 358) and
that appellant may not be convicted of any crime based on his out-of-court
statements alone (CALCRIM 359). 
Appellant defended on the theory that Y. was to blame and initiated the
sex.  The grandmother testified that she
frequently saw Y. try to get into appellant's room and told her five or six
times that it was not right.  On
cross-examination, the grandmother opined that if appellant and Y. were having
sex, they were both at fault.  It was
strong evidence of guilt.

Force or Duress

                        Appellant argues
that the evidence does not support the finding that force or duress was used in
counts 4 through 8 for aggravated sexual assault by means of rape and forcible
oral copulation.  The jury was instructed
that aggravated sexual assault of a child under the age of 14 requires that the
prosecution prove that appellant committed "rape by force, fear or threats
on another person."  (CALCRIM
1123.)  On counts 7 and 8 for forcible
oral copulation, the jury was instructed that the prosecution must prove that
appellant "accomplished the act by force, violence, duress, menace, or
fear of immediate and unlawful bodily injury to someone.  [¶]  .
. . [¶]  Duress means a direct or implied
threat of force, violence, danger, hardship, or retribution that causes a
reasonable person to do or submit to something that he or she would not
otherwise do or submit to.  When deciding
whether the act was accomplished by duress, consider all the circumstances,
including the age of the other person and her relationship to the
defendant."  (CALCRIM 1015; see People
v. Leal (2004) 33 Cal.4th 999, 1004.) 


                          Appellant argues that he did not use force in
excess of that necessary to accomplish the sex acts.  (See e.g., People v. Senior (1992) 3
Cal.App. 4th 765, 774.)  But physical
force and duress (i.e. psychological coercion) are not the same. "The fact
that the victim testifies the defendant did not use force or threats does not
require a finding of no duress; the victim's testimony must be considered in
light of her age and relationship to the defendant." (People v. Cochran
( 2002) 103 Cal.App.4th 8, 14.) 

                        Citing People v.
Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), appellant argues
that psychological coercion without more does not establish duress.  In Espinoza defendant molested his
12-year-old daughter but "[n]o evidence was adduced that [the] defendant's
lewd act and attempt at intercourse were accompanied by any 'direct or implied
threat' of any kind.  While it was clear
that [the victim] was afraid of the defendant, no evidence was introduced to
show that this fear was based on anything [the] defendant had done other than
to continue to molest her."  (>Id., at p. 1321.) 

                        Our courts have
distinguished Espinoza where there is a large discrepancy in size and
age between the defendant and the victim that affects the victim's sense of
physical vulnerability.  (People v.
Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239; People v.
Cochran, supra, 103 Cal.App.4th at pp. 14- 15; People v. Pitmon (1985)
170 Cal.App.3d 38, 51; People v. Veale (2008) 160 Cal.App.4th 40,
48.)  Appellant was seven inches taller,
80 pounds heavier, and 20 years older than Y. 
Duress was established by the frequent family contact, a long and
trusting relationship, appellant's position of authority, the use of an
isolated place to commit the molestations (locked bedroom), and appellant's
warning that there would be dire consequences if Y. told anyone.  (People v. Superior Court (Kneip),
supra,
219 Cal.App. 3d at pp. 238-239; People v. Cochran, >supra,
103 Cal.App.4th at p. 15.) 
.)  "A simple warning to a
child not to report a molestation reasonably implied the child should not
otherwise protest or resist the sexual imposition."  (People v. Senior, supra, 3
Cal.App.4th at p. 775.)  The evidence
clearly supports the finding that appellant committed the charged offenses by
duress.  " 'Th[e] record paints a
picture of a small, vulnerable and isolated child who engaged in sex acts only
in response to [appellant's frequent contact with the family] and physical
authority.  Her compliance was derived
from intimidation and the psychological control he exercised over her and was
not the result of freely given consent.' " 
(People v. Veale, supra, 160 Cal.App. 4th at p. 48, fn.
omitted.)  A rational trier of fact can
find duress where there is an "inherent imbalance of power in an encounter
between a child and an adult bent on sexual conduct." (People v. Soto
(2011) 51 Cal.4th 229, 245-246.) 

                        The evidence further
shows that appellant used force in both the penetration and the physical
movement and positioning of the victim. 
(People v. Young (1987) 190 Cal.App.3d 248, 258.)  Appellant locked his bedroom door, pushed Y.
on the bed, and restrained her hands to accomplish the rape on two
occasions.  The rape in Y.'s bedroom
occurred while Y.'s brothers were asleep in the same bed.  Y. was too scared to scream or call out for
help.  On other occasions, appellant
grabbed Y.'s head, pushed her down to her knees, and moved her head with his
hand until he ejaculated in her mouth.  

Count
9

            Appellant
claims that the evidence does not support the conviction for lewd conduct on Ana
L.  As in any sufficiency of the evidence
appeal, we review the record in the light most favorable to the judgment and
presume the existence of every fact the jury could reasonably deduce from the
evidence in support of the judgment.  (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

                        Ana
testified that appellant unbuttoned her pants and touched her vagina.  The testimony of a single witness is
sufficient.  (People v. Young (2005)
34 Cal.4th 1149, 1181.)  Ana's testimony
was corroborated by her  father who saw
appellant moving his hand.  The father
stopped the car, opened the hatchback and saw that Ana's pants were
unbuttoned.  Ana said "this guy
touched me here," pointing to her vagina. 
Appellant got out of the vehicle and fled.  In a Miranda  interview seven years later, appellant said he
was "playing" with Ana and tickling her stomach. 

Preliminary
Hearing Evidence

                        Appellant claims that
the evidence at the preliminary hearing was insufficient to bind him over for
trial on count 9 (lewd conduct), on one of the child rape counts (count 6), and
on the element of force or duress with respect to counts 4 through 8.  Insufficiency of the evidence at the
preliminary hearing is not a jurisdictional defect cognizable on appeal.  (People v. Alcala (1984) 36 Cal.3d
604, 628.)  Appellant makes no showing
that the purported evidentiary irregularities at the preliminary hearing
resulted in an unfair trial.  (People
v. Letner (2010) 50 Cal.4th 99, 140.) 
"Where the evidence produced at trial amply supports the jury's finding,
any question whether the evidence produced at the preliminary hearing supported
the finding of probable cause is moot." 
(People v. Crittenden (1994) 9 Cal.4th 83, 137.)

                        Appellant's remaining
arguments have been read and considered, and merit no further discussion.href="#_ftn2" name="_ftnref2" title="">[2]

                        The judgment is
affirmed.

                        NOT TO BE PUBLISHED.

 

 

                                                                                                YEGAN,
J.

 

We
concur:

 

 

                        GILBERT, P.J.

 

 

                        PERREN, J.



William C. Ryan, Judge

 

Superior Court County of Los Angeles

 

______________________________

 

 

                        Antonio M. Zaldana, for
Appellant.

 

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, J. Michael Lehmann, Deputy Attorney General, for Plaintiff
and Respondent.