P. v. Mendoza
Filed 1/10/07 P. v. Mendoza CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. LUIS MENDOZA, Defendant and Appellant. | D047643 (Super. Ct. No. SCD181922) |
APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed.
Felipe Sanchez, who has also been known as Luis Mendoza,[1] was convicted of two counts of committing lewd acts upon a child. (Pen. Code, § 288, subd. (a).) The trial court sentenced Sanchez to prison for 10 years for the sex offenses and imposed a one-year sentence for a prior drug conviction for which Sanchez was on probation at the time he was arrested for the instant offenses.
Sanchez argues that the trial court erred by instructing the jury during Sanchez's testimony that it had already ruled Sanchez's admissions to police were admissible and that police had not violated Sanchez's Miranda[2] rights. Sanchez also argues that the trial court's imposition of an upper term sentence violated his constitutional rights to a jury trial and due process.
As we will explain, we conclude that Sanchez's arguments are without merit, and accordingly, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background of the Offenses
Yesenia G. lived with Sanchez and her three children Jessica, Jennifer and Felipe, Jr., in a one-bedroom apartment. In April 2004 Jennifer was eight years old and Jessica was seven years old. Sanchez is the father of Felipe, Jr., who was born in 2002, but he is not the father of Jessica and Jennifer.
In the one-bedroom apartment, Yesenia, Sanchez and Felipe, Jr., slept on the bed, and Jennifer and Jessica slept on the floor at the foot of the bed. Yesenia testified that early in the morning of April 12, 2004, she went to bed at 1:00 a.m. while Sanchez stayed in the living room to watch television. While Yesenia was trying to fall asleep, Sanchez came into the bedroom from the living room approximately four times. Yesenia twice saw Sanchez bending down to where Jennifer and Jessica were sleeping at the foot of the bed. She became suspicious that Sanchez was molesting the girls and confronted Sanchez, who denied doing anything wrong. Yesenia then spoke to Jessica and Jennifer, who told her that on other occasions Sanchez had touched their genitals.
Yesenia left the house with the children and called the police. Later that day, Jennifer and Jessica were interviewed by a social worker and underwent medical exams, and Sanchez was interviewed by the police.
Jennifer and Jessica both told the social worker that on several occasions Sanchez had touched their genitals while they were asleep. Jennifer's physical exam was normal, although it did not rule out sexual abuse. Jessica's hymen was somewhat narrow, which could have indicated a previous injury, such as from sexual abuse.
Sanchez's interview with police lasted several hours. During the interview, Sanchez initially denied improperly touching either Jennifer or Jessica. However, later in the interview he admitted to touching Jennifer's genital area on two occasions approximately five or six months earlier. He claimed that Jennifer had taken his hand and placed it under her panties while they were watching television. He denied having improperly touched Jessica.
Sanchez was arrested and charged with eight counts of committing a lewd act upon a child. Counts 1 and 2 alleged that Sanchez touched Jennifer's vagina; counts 3, 4 and 5 alleged that Sanchez touched Jennifer's buttocks; count 6 and 7 alleged that Sanchez touched Jessica's vagina; and count 8 alleged Sanchez touched Jessica's buttocks.
B. Trial Proceedings
During in limine motions, the trial court ruled that Sanchez's statements to police were not obtained in violation of his Fourth Amendment rights. Specifically, the trial court ruled that Sanchez was properly informed of his Miranda rights and there did not appear to be any undue pressure or coercion applied to Sanchez during the interview. Accordingly, the trial court denied defense counsel's motion to exclude the videotapes of the interview.
At trial, Jennifer testified that when she was seven years old Sanchez started touching her with his hands in her genital area and buttocks while she was sleeping and that Sanchez touched her genital area while they were watching television on the living room couch. Jessica testified that Sanchez had starting touching her private parts when she was seven years old, and it would happen when she was in bed.
The jury was shown videotapes of Sanchez's interview with the police and Jennifer and Jessica's interview with the social worker.
This appeal centers on an instruction that the trial court gave to the jury during Sanchez's testimony. The context in which the instruction was given is relevant to our analysis, and we thus review it here.
Sanchez testified that he had never touched Jennifer's or Jessica's genital area or buttocks. Defense counsel thus elicited testimony from Sanchez to explain why he had falsely admitted to the police that he had touched Jennifer. Sanchez stated that he told the police that Jennifer had placed his hands on her genital area because the police were pressuring him to admit something and he wanted them to leave him alone.
Next, defense counsel explored whether Sanchez understood his constitutional rights while the police were questioning him. In response to defense counsel's questioning, Sanchez testified that the police did not tell him that he had the right to remain silent and that he did not have to answer any of their questions, but that they did ask him if he understood all of his rights. When defense counsel asked Sanchez whether he had understood that he could have stopped the interview at any time, the prosecutor objected on the grounds of relevancy.
The trial court and counsel addressed the objection in a sidebar discussion. The prosecutor argued that because the trial court had already ruled in limine that Sanchez had voluntarily waived his Miranda rights,[3] testimony regarding the voluntariness of
Sanchez's admission was irrelevant. Defense counsel took issue with that position and explained that the circumstances of Sanchez's admission were relevant because they would allow the jury to determine whether, as Sanchez claimed, he made a false admission because he felt pressured. Then, putting aside the original relevancy objection, the prosecutor argued that if defense counsel was permitted to ask about whether Sanchez felt pressured, the prosecution " should be permitted to bring up that the court has already [ruled] that the statements are admissible."
Agreeing to this approach, defense counsel responded, " You can give them the instruction that you have already ruled on the [admissibility] of the statement. I'm not challenging that." The prosecutor thus stated, " I would ask for an instruction now because it is giving [the jury] the wrong impression. They were thinking his rights were violated. He gave a statement that his rights weren't read to him and that he has given a statement under duress." Defense counsel again agreed: " I have no problem if you think that's the way that it is going, but I don't see it that way. . . . Your ruling has been that it is admissible and that's not a contestable issue. So I am not challenging that. But I am just setting up the context under which he felt pressure." Accordingly, the trial court stated, " At this time, I will just tell the jury that I have already ruled that his statements to the police were admissible and there was no Miranda violation." Defense counsel replied, " I'm okay with that."
The trial court then instructed the jury, " Ladies and Gentlemen, there was an objection as to relevancy. At this time, I will overrule the objection as to relevancy. However, I will admonish the jury that in pre-trial motions, the court already made a finding that the statements to the police officers were admissible and that there has been no violation of Mr. Sanchez's Miranda rights."
Following the instruction, defense counsel resumed questioning Sanchez, eliciting Sanchez's testimony that he admitted to touching Jennifer because he wanted everything to end and was looking for a way to get the police to stop asking questions.
During cross-examination, the prosecutor explored whether Sanchez was pressured during the police interview and whether Sanchez had been advised of his constitutional rights. Sanchez admitted that the police told him he had the right to an attorney and the right to remain silent before they interviewed him. He also admitted that during the interview he signed a consent form indicating that he had agreed to talk and could terminate the discussion at any time, and that he knew it was within his power to stop the conversation at any time.
The jury found Sanchez guilty of two counts of committing a lewd act upon a child by touching Jennifer's vagina on two occasions and acquitted him of all other charges.
II
DISCUSSION
A. Sanchez's Challenge to the Trial Court's Instruction to the Jury
Sanchez argues that the trial court erred by instructing the jury that it had made a finding that Sanchez's statements to the police officers were admissible and that Sanchez's Miranda rights had not been violated. Sanchez argues that " the trial court removed from the jury's consideration the question of whether appellant's statements were the result of police pressure and thus not reliable."
Sanchez's argument is premised on the principal that the probative weight of a confession is " exclusively for the jury to assess." (Crane v. Kentucky (1986) 476 U.S. 683, 688 (Crane).) " [A] jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given." (Sims v. Georgia (1967) 385 U.S. 538, 543-544, citing Jackson v. Denno (1964) 378 U.S. 368, 393-396 (Jackson).) However, " because 'questions of credibility, whether of a witness or of a confession, are for the jury,' the requirement that the court make a pretrial voluntariness determination does not undercut the defendant's traditional prerogative to challenge the confession's reliability during the course of the trial." (Crane, at p. 688.) " [A] defendant's case may stand or fall on his ability to convince the jury that the manner in which the confession was obtained casts doubt on its credibility." (Id. at p. 689.) Indeed, " the jury, if it so chooses" may " give absolutely no weight to the confession in determining the guilt or innocence of the defendant." (Sims, at p. 544.)[4]
In Crane, the United States Supreme Court ruled that because " evidence about the manner in which a confession was obtained is often highly relevant to its reliability and credibility," when the trial court excludes evidence that might have caused the jury to question a confession's reliability, a defendant is deprived of his Sixth and Fourteenth Amendment rights to " 'a meaningful opportunity to present a complete defense.' " (Crane, supra, 476 U.S. at p. 690.) Crane drew a clear distinction between (1) the legal issue of voluntariness, which determines the admissibility of a confession and is decided by the court, and (2) the separate factual question of the confession's reliability, which is a question for the jury. (Id. at p. 684.)
Sanchez acknowledges that the trial court did not explicitly remove the factual issue of voluntariness from the jury's consideration.[5] However, he argues that the effect of the trial court's instruction was the same. He argues that " the trial court's admonition to the jury that it had ruled the evidence admissible, and there was no Miranda violation, was functionally the same as excluding [Sanchez's] evidence that he had been pressured into making a confession. There was more than a reasonable likelihood that the jury understood the admonition to mean that [Sanchez's] admissions to [police] were true."
Sanchez argues that " the jurors could not have understood that the trial court's pretrial ruling was not binding on them, and [that] the jurors were free to make their own independent determination of the voluntariness of [Sanchez's] admissions." (Italics added.) According to Sanchez, " [i]t was unlikely that the jury could distinguish between a pretrial ruling by the trial court that [Sanchez's] statements were admissible, and no Miranda violation had occurred, from its own obligation to make an independent determination of the reliability of [Sanchez's] admissions." (Italics added.)
We disagree. Sanchez's argument is flawed because the trial court did not decide the factual issue of voluntariness for the jury. Nor did the trial court remove the factual issue from the jury's consideration. The trial court merely explained that it had already determined that Sanchez's statements to the police were admissible and that Sanchez's Miranda rights had not been violated. Unlike in Crane, the trial court in this case gave Sanchez a full opportunity to present evidence regarding the voluntariness of his statements.[6] Indeed, following the trial court's instruction, defense counsel continued to elicit testimony from Sanchez describing the pressure that he felt to make an admission to police. Also, during closing argument, the trial court did not bar defense counsel from arguing that Sanchez's admissions were unreliable and should be disregarded because Sanchez testified that he made them to end the police interview. Sanchez thus had a " 'meaningful opportunity to present a complete defense,' " as required by Crane, supra, 476 U.S. at page 690), and we accordingly find no support for Sanchez's argument that the trial court's instruction to the jury infringed his constitutional rights.[7]
B. Sanchez's Challenge to the Imposition of an Upper Term Sentence
Sanchez's remaining contention is that by imposing an upper term sentence in accordance with California's determinate sentencing law (DSL), the trial court violated his rights to a jury trial under the federal constitution, as interpreted in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We reject Sanchez's argument.
Our Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black) addressed the effect of the United States Supreme Court decisions in Blakely, supra, 542 U.S. 296, and in United States v. Booker (2005) 543 U.S. 220 on the DSL. The Court held that the DSL, which allows judicial factfinding when a judge exercises discretion to impose an upper term sentence, does not implicate a defendant's federal constitutional right to a jury trial. Rather, the DSL " simply authorize[s] a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range." (Black, at p. 1254.) Thus, based on Black, we affirm the trial court's imposition of an upper term sentence.[8] (People v. Brock (2006) 141 Cal.App.4th 1320, 1328 [rejecting identical challenge as barred by Black].)
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
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[1] It was established at trial that although Sanchez has also been known by the name Luis Mendoza, his proper name is Felipe Sanchez. Thus although Sanchez was charged in this case under the name Luis Mendoza, we will accordingly refer to the defendant as Sanchez throughout our discussion.
[2] Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
[3] " Under the familiar requirements of Miranda, designed to assure protection of the federal Constitution's Fifth Amendment privilege against self-incrimination under 'inherently coercive' circumstances, a suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent." (People v. Sims (1993) 5 Cal.4th 405, 440, citing Miranda, supra,384 U.S. 436, 444-445, 473-474.)
[4] We note that Sanchez's opening brief also cites two California cases for the proposition that the jury, along with the court, should determine whether a confession is freely and voluntarily made. (People v. Fox (1944) 25 Cal.2d 330; People v. Watson (1961) 198 Cal.App.2d 707.) Those cases, however, were decided before Jackson, supra, 378 U.S. at pages 393-396, and Crane, supra, 476 U.S. 683, set uniform constitutionally-based ground rules for the distinct roles played by the jury and the trial court in considering the voluntariness of a confession. As Sanchez's reply brief recognizes, Crane is the current relevant precedent for the question presented here.
[5] Specifically, Sanchez recognizes that the " instruction did not explicitly tell the jury that [Sanchez's] admissions had been freely and voluntarily given and should be given weight by the jury."
[6] Sanchez acknowledges that the trial court " did not prevent [him] from presenting evidence concerning the circumstances of his admissions."
[7] We acknowledge that the trial court's instruction informed the jury that Sanchez's statements were admissible and that his Miranda rights were not violated, but it did not clarify the meaning of the terms " admissible" and " Miranda rights," and did not explain the legal significance of the admissibility ruling. Although the trial court might have chosen to give a lengthier instruction elaborating on some issues that may have been unclear to the jury, " [a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024; see also People v. Hart (1999) 20 Cal.4th 546, 622 [appellant could not complain about ambiguity of jury instruction without having requested a clarifying instruction in the trial court]; People v. Dennis (1998) 17 Cal.4th 468, 514 [" If defendant believed the instructions were incomplete or needed elaboration, it was his obligation to request additional or clarifying instructions. [Citation.] His failure to do so waives the claim in this court" ].) Here, because Sanchez did not argue in the trial court that clarifications were needed to prevent any misapplication of the instruction by the jury, we will not on appeal consider whether the instruction, agreed to by defense counsel, should have been clarified or worded differently.
[8] Sanchez argues that Black, supra, 35 Cal.4th 1238, was wrongly decided but concedes that we are bound by that opinion. We note that the United States Supreme Court has granted certiorari in People v. Cunningham v. California (Apr. 18, 2005, A103501, cert. granted Feb. 21, 2006, sub nom. Cunningham v. California ___ U.S. ___ [126 S.Ct. 1329, 164 L.Ed.2d 47]), which involves the issue of whether California's upper term sentencing procedures violate Blakely.
