P. v. Samayoa

Filed 6/26/06 P. v. Samayoa CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Oscar Emilio Samayoa timely appeals his jury trial conviction for numerous sex offenses committed against his girlfriend's daughters, V. and Y. Samayoa contends his confessions were obtained in violation of his Miranda^[1] rights and also contends they were coerced. In addition, Samayoa contends the trial court erred (1) by allowing the jury to watch a videotape of his confessions showing a polygraph machine positioned prominently next to him; and, (2) by refusing to declare a mistrial after the jury heard on the video Samayoa failed a polygraph test. Although we ultimately conclude Samayoa's confessions were voluntary, we first conclude they were obtained in violation of Miranda. Therefore, the trial court erred by admitting Samayoa's confessions into evidence. Furthermore, we conclude the trial court's error was not harmless beyond a reasonable doubt. Because we reverse the judgment on Miranda grounds, we do not address Samayoa's remaining evidentiary contentions concerning the jury's viewing of the videotape.

BACKGROUND

I. Charges – Verdict – Sentencing

An Amended Information (AI) filed on November 9, 2004, charged Samayoa with the following crimes against Jane Doe #1 (Y.): forcible rape (count 1); a lewd and lascivious act with a child under age 14 with force (count 2); lewd and lascivious act with a child under age 14 (counts 3-50). The AI charged Samayoa committed the following crimes against Jane Doe #2 (V.): unlawful sexual intercourse by a person over age 21 with a minor under age 16 (counts 51-56); lewd an lascivious act with a child age 15 by a person at least ten years older (counts 57-62); unlawful sexual intercourse by a person with a minor more than three years younger than the person (counts 63-72); oral copulation by a person over age 21 with a minor under age 16 (counts 73-74); sexual penetration by a person over age 21 with a minor under age 16 (counts 75-76). It was alleged all these offenses took place between April 23, 2000, and July 31, 2002.

Jury trial began on October 27, 2004. On November 9, 2004, the jury returned verdicts of guilty as to counts 1 through 38, and counts 51 through 72. The jury returned verdicts of not guilty on counts 39 through 50, and counts 73 through 76. On January 24, 2005, the trial court imposed a sentence of six years on count 1, a consecutive sentence of six years on count 2, and two years on counts 3 through 23, consecutive to each other and to the terms imposed on counts 1 and 2. The trial court imposed a concurrent sentence of six years on counts 24 through 38, a sentence of one year on counts 51 through 56, consecutive to each other and other terms imposed, and a concurrent sentence of two years on counts 57-72. Samayoa received a total determinate sentence of 60 years.

II. Factual Background

A. The Investigation

Samayoa began dating Aida, mother of V. and Y., after Y.'s father left home. V. recalled Samayoa moved into their one-bedroom apartment in 1999. Samayoa and Aida slept in the bedroom and the girls shared a couch-bed in the living-room. At one point, Aida worked nights and Samayoa was at home alone with the girls overnight.

On August 26, 2003, Michele Tom, a social worker, received a report Y. may have been the victim of sexual abuse by her father, her paternal grandfather, and by her mother's boyfriend. Tom was also informed V. may have been abused by her mother's boyfriend. In response to this information, Tom spoke with Y.'s mother Aida at her home. Aida told Tom Y. had not lived with her for some time, they were not in contact, but she knew Y. was starting at South San Francisco High School on the next day. Tom went to the high school on the following day and interviewed Y. Y. denied her father or grandfather abused her, but said she had been raped by Samayoa a few years ago. Tom contacted South San Francisco Police Officer Ken Hancock, and Hancock later interviewed Y. at school in Tom's presence.

On September 1, 2003, Hancock conducted a detailed interview with Y. Y. said she first had sexual intercourse with Samayoa in July 2000, when she was eleven years old. Y. described how Samayoa led her into the bedroom, undressed her, and laid her down on the bed. He inserted his penis into her vagina. This was painful, so Y. began to scream, but Samayoa covered her mouth. Y. told Hancock Samayoa had intercourse with her once or twice a week for two years. Samayoa never ejaculated inside her--he always withdrew and ejaculated into a tissue. In July 2002, Y. ran away to live with her father and had no further sexual contact with Samayoa.

On September 2, 2003, Officer Hancock interviewed V. at the police station. V. said she moved out of her mother's house in June 2002. V. recalled Samayoa moved in with her mother in 1999, and began to act inappropriately with her in 2000, her freshman year. She would have been fifteen at that time. V. stated she forgot how the sexual activity between her and Samayoa began, but she recalled Samayoa would invite her into the bedroom while her mom was at work. V. stated Samayoa never ejaculated inside her; he usually ejaculated into tissue paper and sometimes onto her stomach. She said Samayoa had sexual intercourse with her about once a week until her mom found out about it around January 2002. Next, Hancock interviewed the girls' mother Aida at home. Aida consented to a search of her apartment, and Hancock asked her to have Samayoa contact the police when he got home. Later, Samayoa called the police and spoke with Officer Hancock. Samayoa reportedly stated he was willing to speak to the police but explained he was having car troubles, so it was agreed police would pick him up and give him a ride to the station the next morning.

B. The Interview Process

1. Initial Interview

The next day, September 3, 2003, Officer Hancock and Detective Azzopardi, both in plain clothes, picked Samayoa up in an unmarked police car and drove him to the police station in South San Francisco, which is about two miles from his home. Samayoa was not in handcuffs or restrained in any way. At the station, Samayoa was escorted into an interview room.

At 10:24 a.m., Detective Azzopardi began the interview by telling Samayoa he was not under arrest. Samayoa confirmed he was there voluntarily. Azzopardi told Samayoa he was free to go if he wanted. When Azzopardi asked Samayoa if he knew why police wanted to talk to him, Samayoa responded he understood the girls had said something about him. Initially, Azzopardi questioned Samayoa about his relationship with Aida and about why the girls had moved out of the house. Samayoa responded that his relationship with Aida was good, and had become easier since the girls moved out. He had not talked to the girls in about two years.

Azzopardi asked Samayoa if anything inappropriate ever happened between him and V. or Y. Samayoa said nothing more happened than hugs and kisses. Azzopardi then questioned Samayoa about his sex life with Aida, including whether he wore a condom during intercourse. Samayoa responded he reached climax outside, sometimes ejaculating into tissue paper and sometimes onto Aida's stomach. Azzopardi informed Samayoa both V. and Y. alleged Samayoa had sexual contact with them. Azzopardi said he's a good judge of the truth and told Samayoa the girls said some of this sexual activity was forced. Azzopardi said he did not believe that, but believed there had been consensual sexual contact. Samayoa denied this. Azzopardi told Samayoa, â€