P. v. Gonzalez
Defendant Salvador Flores Gonzalez appeals from the judgment entered after a jury found him guilty of lewd or lascivious acts with a child under 14 years of age, false personation, child annoyance, indecent exposure, and failure to register as a sex offender.
Defendant contends the trial court abused its discretion by (1) allowing testimony describing the facts and circumstances surrounding defendants conviction for rape in 1999 because its probative value was substantially outweighed by its prejudicial impact; (2) admitting his postarrest videotaped interviews with police officers because the interviews improperly contained the officers opinions about defendants intent, guilt, and truthfulness, and because defendant was not provided a Spanish speaking interpreter at the time he was read his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) at the beginning of the interviews; and (3) allowing the interviewing police officers to testify about their opinions on the issue of defendants intent, guilt, and truthfulness.
Defendant also contends the trial court erred by imposing an upper term sentence and consecutive sentences, based on facts not admitted or found true by a jury beyond a reasonable doubt.
Court affirm. The trial court did not err by admitting evidence regarding defendants 1999 rape conviction under Evidence Code section 1108 because its probative value was not substantially outweighed by its prejudicial impact. Defendant did not object to the introduction of the videotaped interviews on the ground that they contained the officers opinions. In any event, the videotaped interviews were properly admitted after the jury was instructed not to consider any facts, concerns, or insinuations or opinions in the questions asked as true. Defendant did not object to the interviewing officers testimony at trial. Even assuming defendant has not waived objections to the testimony, the testimony did not include opinions about defendants intent, guilt, or truthfulness; the testimony merely explained why the officers asked defendant certain questions.
The record does not show defendant required an interpreter when he was read his rights under Miranda during his postarrest interviews with police officers. In light of the United States Supreme Courts recent decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), Court remand for resentencing on the sole ground the trial court imposed an upper term sentence based on aggravating circumstances found true by the court rather than by a jury beyond a reasonable doubt.
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