IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
December 13, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SALVADOR GARROLA SALAZAR, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F05505)
The opinion of the court was delivered by: Butz J.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a bench trial, the trial court convicted defendant Salvador Garrola Salazar of one count of engaging in sexual penetration with a child 10 years old or younger (Pen. Code, § 288.7, subd. (b)), and sentenced him to a state prison term of 15 years to life.
On appeal, defendant contends the trial court erred prejudicially in failing to suppress two statements that defendant made to the police, and in admitting into evidence the victim's statements to a forensic nurse and to his father.
We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, G.G., was five years old at the time of trial. In June 2008, when G.G. was four, he lived with his father (Gerardo), mother (Maria), sister (Nancy), and uncle (defendant).
On June 12, 2008, both of G.G.'s parents had to go to work. Normally, when Maria went to work, she would drop both G.G. and Nancy off at school, but on this day, G.G. refused to stay at school. Maria took him back home where she left him with her brother, defendant. Defendant and G.G. were the only ones at the house until G.G.'s father, Gerardo, came home from work.
When Gerardo arrived home, G.G. went to him and said that defendant had done something to him in the back. G.G. said defendant's name, the word blood (in Spanish), and pointed to his rear end. At the time, Gerardo did not give much thought to G.G.'s statements and took G.G. with him to pick up Nancy from school. When Gerardo and his two children returned home, Maria was there too; defendant had left the house.
G.G. went to his mother and told her that defendant had done something to him in the back, that blood had come out, and that defendant had cleaned it off. G.G. also told his mother that he was in pain. Gerardo and Maria then looked at G.G.'s rear end and could tell he had been hurt, and they feared he had been abused. G.G.'s parents took him to the hospital but were told they needed to file a police report before an examination could be conducted. The parents took G.G. home, filed a police report, and took him to be treated the next day; he was treated by a pediatric nurse practitioner, Cathy Boyle.
Nurse Boyle, when treating children who are suspected victims of child abuse, examines the child from head to toe, an examination which she performed on G.G. The purpose of this exam is to "identify and treat" injuries the child may have sustained. During Boyle's exam of G.G., she asked him whether he had any "owies"; G.G. said yes and pointed to his rear end. Nurse Boyle asked "who did that?" and G.G. said defendant's name.
After conducting the full body exam, Nurse Boyle reported that G.G. had a large laceration in his anal area and that it was a very recent injury. Furthermore, Boyle indicated that G.G.'s injury was consistent with penetration by an object larger than one finger.
As will be explained in detail in the discussion, on July 3, 2008, defendant made an incriminatory statement to the police. Four days later, defendant made another such statement.
I. Defendant's July 3, 2008 Statement to the Police
Defendant contends the trial court committed prejudicial error in not suppressing his July 3, 2008 statement to the police.
Before trial, defendant moved to suppress this statement on the theory that because he was subject to "custodial interrogation," the statement was inadmissible as he had not been given his Miranda rights.*fn1 The trial court denied the motion, finding that defendant was not subject to "custodial interrogation" on July 3, 2008.
Under Miranda, "'the prosecution may not use statements . . . stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.'" (People v. Farnam (2002) 28 Cal.4th 107, 179, italics added.) In the absence of custodial interrogation, Miranda does not come into play. (People v. Mickey (1991) 54 Cal.3d 612, 648.)
In deciding whether defendant was subject to custodial interrogation, "[w]e review the record . . . to determine whether a reasonable person in defendant's position would have felt he or she was in custody . . . . [We] examin[e] all the circumstances regarding the interrogation, [to determine whether] there was a '"formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.' [Citation.] As the United States Supreme Court has instructed, 'the only relevant inquiry is how a reasonable man in the suspect's shoes would have understood his situation.'" (People v. Stansbury (1995) 9 Cal.4th 824, 830.)
Detective Juan Hildago of the Sacramento County Sheriff's Department was assigned the investigation of this matter. On July 2, 2008, Hidalgo and his partner drove to defendant's place of work, a Carl's Jr. in Rocklin, California. The deputies met with defendant and asked whether he would be willing to speak with them at the police station. Defendant replied that he was too busy at the moment but that he would be available the next day. The conversation ended and the detectives left.
The next morning, July 3, 2008, Detective Hildago received a phone call from defendant asking for a ride to the station since he did not have transportation. Hildago and his partner went to defendant's workplace and drove defendant to the sheriff's station in an unmarked squad car. Before driving to the station, Hildago informed defendant that he was not under arrest and told him that they were just going to the station for an interview. At no point was defendant handcuffed. Hildago also agreed that he would give defendant a ride back when the interview ended.
At the station, defendant was taken to an interview room. Detective Hildago closed the door but informed defendant that the room was not locked, explaining that he was merely closing the door for privacy. Defendant was apprised that he did not have to speak with Hildago, that he could leave at any time, and again told he was not under arrest.
During the interview, Detective Hildago asked defendant whether he had ever inappropriately touched his nephew, G.G. Initially, defendant said he had not, but he later changed his answer. Defendant stated that in June 2008, when G.G's parents were at work, he pulled G.G.'s pants down and placed his finger inside G.G.'s anus for approximately five minutes. He then told Hildago that afterwards, he went outside to work on his car but came back in when he heard G.G. crying, noticed blood coming from G.G.'s anus, and cleaned the blood with a towel which he threw in the trash.
When the interview ended, Detective Hildago and his partner drove defendant back to his workplace.
The present case is factually similar to a recent California Supreme Court case, People v. Leonard (2007) 40 Cal.4th 1370 (Leonard). The defendant in Leonard was a suspect in a string of murders in Sacramento and wanted for questioning. The police went to the defendant's apartment and asked him if he would accompany them to the sheriff's station to be fingerprinted and answer questions. (Id. at p. 1398.) The defendant stated that he was too busy at the moment but that he would be available the next day. (Ibid.) The following day, because the defendant had epilepsy and could not drive, the police officers picked him up and took him to the sheriff's station. (Ibid.) At no time during the drive was the defendant handcuffed. (Ibid.)
At the station, the Leonard defendant was fingerprinted and taken to an interview room, which was not locked. (Leonard, supra, 40 Cal.4th at pp. 1398, 1401.) "At the beginning of the interview, [the officer] told defendant he was not under arrest, he did not have to answer any questions, and he was free to leave anytime." (Id. at p. 1398, italics added.) During the interview, the defendant made damaging statements which were used against him at trial. (Id. at pp. 1398-1399.) When the interview ended, the officers drove the defendant back to his apartment. (Id. at p. 1399.)
On appeal, the defendant in Leonard argued that the statements were improperly used against him at trial because he was subject to custodial interrogation and not advised of his Miranda rights. (Leonard, supra, 40 Cal.4th at pp. 1399-1400.) Applying the standards set forth above, the California Supreme Court found the defendant "was not subjected to custodial interrogation" because "a reasonable person in his position would have felt free to leave." (Id. at pp. 1400-1401.)
In the case before us, defendant's questioning closely mirrors the questioning in Leonard. In both cases, officers gave defendants a ride to and from the station; the defendants were not handcuffed, and were placed in an unlocked interview room. In both instances, the defendants were told they were not under arrest, they did not have to answer questions, and they were free to leave at any time. Also, in each case, the defendants declined to speak when first approached and the officers respected those requests.
In Leonard, the California Supreme Court held that under those circumstances, "a reasonable person . . . would have felt free to leave" and therefore "was not subject to custodial interrogation." (Leonard, supra, 40 Cal.4th at pp. 1400-1401.) Here, because defendant was interviewed under nearly identical circumstances as those in Leonard, defendant was not subject to custodial interrogation and Miranda does not apply. Therefore, the trial court did not err in denying the motion to suppress the July 3 statement.
Defendant, however, relies on United States v. Lee (9th Cir. 1982) 699 F.2d 466 for his contention that he was in custodial interrogation on July 3, 2008. In Lee, the defendant was questioned by two agents while in the backseat of an FBI vehicle parked outside of his home. (Id. at p. 467.) Prior to questioning, "he was told he was free to leave the car or terminate the interview at any time . . . ." (Ibid.) During questioning, police investigators were roaming in and around his house. (Id. at p. 468.) The Ninth Circuit held that the defendant had been subjected to custodial interrogation because "a reasonable person could conclude [the defendant] reasonably might feel he was not free to decline the agent's request that he be interviewed." (Ibid.)
We decline to follow Lee for two reasons. First, the California Supreme Court has stated, "although we are bound by decisions of the United States Supreme Court interpreting the federal Constitution [citations], we are not bound by the decisions of the lower federal courts even on federal questions." (People v. Bradley (1969) 1 Cal.3d 80, 86; People v. Camacho (2000) 23 Cal.4th 824, 830, fn. 1.) We are, however, bound by decisions from the California Supreme Court such as Leonard. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Letner and Tobin (2010) 50 Cal.4th 99, 198.) Thus, while we are not bound to follow Lee, we are bound to follow Leonard.
Second, Lee's reasoning has been criticized by another federal circuit court. In United States v. Czichray (8th Cir. 2004) 378 F.3d 822, 826, the court stated, "[t]hat a person is told repeatedly that he is free to terminate an interview is powerful evidence that a reasonable person would have understood that he was free to terminate the interview. So powerful, indeed, that no governing precedent of the Supreme Court or this court, or any case from another court of appeals that can be located (save one decision of the Ninth Circuit decided under an outmoded standard of review, [Lee]), holds that a person was in custody after being clearly advised of his freedom to leave or terminate questioning."*fn2
We conclude the trial court did not err in denying defendant's motion to suppress his July 3, 3008 statement.
II. Defendant's July 7, 2008 Statement to the Police
On July 7, 2008, Detective Hildago, accompanied by another detective, went to defendant's workplace and arrested him. Defendant was handcuffed and placed in the back seat of the squad car. Hildago sat in the back seat with defendant while the other detective drove them to the jail. On the way to the jail, Hildago read defendant his Miranda rights. (Miranda, supra, 384 U.S. 436 [16 L.Ed.2d 694].) Defendant was again asked what he placed in G.G.'s anus and he stated that it was his finger.
Defendant argues that this statement should also have been suppressed. This argument follows from defendant's first contention, that because the first statement (i.e., the July 3 statement) was inadmissible for violating Miranda, this second statement, although Mirandized, was tainted and therefore inadmissible. We disagree.
Assuming for the sake of argument that defendant preserved this issue at trial, defendant's argument has no merit because we have concluded there was no Miranda violation with the first statement. Thus, the second statement was properly admitted as it could not have been tainted from the first statement.
III. G.G.'s Statement to the Nurse
During Nurse Boyle's examination of G.G., the boy informed her that defendant had caused his "owies." The trial court admitted G.G.'s statement to Boyle as a statement describing medical history under the hearsay exception of Evidence Code section 1253. The trial court found G.G. incompetent to testify because he did not understand his duty to tell the truth.
Defendant contends that G.G.'s statement to Nurse Boyle was inadmissible hearsay and that allowing it into evidence was prejudicial error. Defendant also argues that under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177], the statement was testimonial and thus inadmissible as a violation of defendant's constitutional right to confront the witnesses against him. Finally, defendant argues that in the event his counsel did not preserve the Crawford issue at trial, the issue may nevertheless be considered as a claim of ineffective assistance of counsel. We find no prejudicial error in any respect.
A. Inadmissible Hearsay
We need not consider whether the trial court erred in admitting G.G.'s statement to Nurse Boyle under the hearsay exception of Evidence Code section 1253 (medical history) because defendant will not be able to show prejudice even if we assume the trial court erred.
An erroneous admission of evidence does not result in a reversal unless the error resulted in a miscarriage of justice. (Evid. Code, § 353.) The erroneous admission of evidence is tested under the standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836. Under the Watson standard, the erroneous admission of evidence warrants reversal here only if we conclude that it is reasonably probable that the trial court, as the trier of fact, would have reached a different result had the challenged evidence been excluded. (People v. Scheid (1997) 16 Cal.4th 1, 21.)
Even if G.G.'s statement to Nurse Boyle had been excluded, the remaining evidence of defendant's guilt--which included his two confessions, the nurse's physical findings, and the circumstances surrounding the abuse--was so overwhelming that there is no reasonable probability that the court would have found differently. Therefore, under the Watson standard, allowing G.G.'s statement to Nurse Boyle into evidence was not prejudicial error.
At trial, defendant failed to pursue the issue of whether G.G.'s statement to the nurse was inadmissible under Crawford; therefore, he is precluded from raising this issue on appeal. (People v. Dossman (1991) 235 Cal.App.3d 1433, 1436 ["As a general rule, failure to preserve an issue in the trial court will preclude a party from raising that issue on appeal."].)
C. Ineffective Assistance of Counsel
Anticipating our Crawford conclusion, defendant contends his trial counsel rendered ineffective assistance by failing to object that G.G.'s statement to the nurse was testimonial and therefore inadmissible under Crawford.
To establish ineffective assistance of counsel, defendant must show that his counsel failed to act as a reasonably competent attorney, and that prejudice resulted (i.e., there is a reasonable probability a more favorable outcome for defendant would have occurred in the absence of counsel's failings; a reasonable probability in this context is one sufficient to undermine confidence in the outcome). (People v. Gates (1987) 43 Cal.3d 1168, 1183, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 458-459; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
Similar to the approach we applied for defendant's hearsay contention, it is unnecessary to consider the particulars of counsel's performance here; we proceed straight to the question of prejudice. In light of the remaining overwhelming evidence against defendant, there is not a reasonable probability the result would have been different had defendant's counsel prevented the admission of G.G.'s statement to Nurse Boyle.
IV. G.G.'s Statement to His Father
On June 12, 2008, G.G. went to his father and said that defendant had done something to him in the back; G.G. pointed at his rear end and said blood. The trial court admitted G.G.'s statement to his father as a spontaneous declaration under the hearsay exception of Evidence Code section 1240.
Defendant's final argument is that the trial court erred by not excluding this statement as it was inadmissible hearsay and an inadmissible testimonial statement under Crawford. Should the Crawford issue not be preserved, defendant once again raises the spectre of ineffective assistance.
Again, we disagree with defendant, and we do so in the same manner--proceeding straight to the question of prejudice for judicial efficiency purposes--as we did in analyzing G.G.'s statement to Nurse Boyle. Any error in admitting G.G.'s statement to his father as a spontaneous declaration was not prejudicial in light of the remaining overwhelming evidence against defendant (his two confessions, the nurse's physical findings, and the circumstances surrounding the abuse). And while defense counsel failed to preserve the Crawford issue, any ineffective assistance in this regard was not prejudicial for these same reasons. (See pt. III., ante.)*fn3
V. Error on Abstract of Judgment
We note an error on the abstract of judgment. Although defendant waived a jury trial, the abstract reflects defendant was convicted by a jury. We will direct the trial court to prepare a corrected abstract to reflect defendant's conviction in a court trial.
The trial court shall prepare a corrected abstract of judgment to show at item 1 that defendant was convicted by a court trial. A certified copy of the corrected abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. The judgment is affirmed.
RAYE , P. J.
SIMS , J.*fn4