(Super. Ct. No. 09F07096)
The opinion of the court was delivered by: Nicholson , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant George Phillip Cruz appeals from his conviction on eight counts of oral copulation or sexual penetration with a child 10 years of age or younger. (Pen. Code, § 288.7, subd. (b).) He claims (1) his pretrial confession to the crimes was unlawfully extracted prior to receiving a Miranda warning;*fn1 (2) his confession was unlawfully coerced from him; (3) his total state prison sentence of 120 years to life is cruel and unusual punishment; and (4) the trial court wrongfully imposed a court facility fee under Government Code section 70373 on six of his counts because he committed those crimes before that statute became effective.
Defendant has forfeited his challenges to the use of his confession. He admits he made no motion at trial to exclude his confession on any ground. A failure to challenge an alleged Miranda violation and the voluntariness of a confession at trial forfeits the claims on appeal. (People v. Williams (2010) 49 Cal.4th 405, 435; People v. Peters (1972) 23 Cal.App.3d 522, 529-530.)
Defendant has also forfeited his constitutional attack on the severity of his sentence. Although defense counsel asked the trial court to exercise its discretion to run some of the counts concurrently, he did not object to the sentence as being cruel and unusual. A claim of cruel and unusual punishment must be raised at trial or else it is forfeited on appeal. (People v. Norman (2003) 109 Cal.App.4th 221, 229.)
To overcome these forfeitures, defendant argues he suffered ineffective assistance of counsel when his attorney failed to object to his confession's introduction on the basis of Miranda and voluntariness, and to his sentence as cruel and unusual punishment. We conclude defense counsel did not render ineffective assistance. We also conclude the trial court properly imposed the court facility fee on all counts. We affirm the judgment.
In August 2009, eight-year-old K., the daughter of defendant's girlfriend, told her older sister defendant had been molesting her. At trial, K. testified that from the time she was five years old, defendant on more than 50 occasions placed his penis in her mouth, inserted his finger in her vagina, placed his penis on her vagina, touched her bottom, and had her touch his penis. On occasion, defendant would wipe ejaculate off his penis and put it inside K.'s mouth.
Approximately one month after K. confided in her sister, defendant agreed to meet with Detective John Linke of the Sacramento Sheriff's Department. He drove himself to the sheriff's station. The interview took place in an interview room containing two chairs and a table. The door was closed and unlocked during the interview. Defendant was not restrained during the interview. Detective Linke informed defendant several times he was not under arrest and was free to leave. We explain the circumstances surrounding the interview in greater detail below.
During the interview, defendant admitted he had touched K.'s bare vagina maybe 30 times, masturbated in front of K. at least 50 times, placed his penis in K.'s mouth about three times, and placed the tip of his penis against the outside of K.'s vagina less than 30 times. Defendant denied ever ejaculating in front of K. or placing ejaculate in her mouth.
After defendant confessed to these acts, Detective Linke gave him his Miranda rights. The interview continued, and defendant provided more details of his actions. After the interview, defendant was arrested and booked into jail.
The following day, K.'s mother, G., visited defendant at the Sacramento County Jail. Their conversation was recorded. During the conversation, defendant admitted he began "hurting" K. when she was three years old. He told G. he did what "it said in the paper." He did it in the living room, in the back of the house, and in the bedroom. G. was shopping or sleeping during those times. K. said nothing when defendant did anything to her.
Defendant also told G. that during his interview with Detective Linke, "[Linke] said, you're not under arrest. Y -- You can leave at anytime. And I -- and at one point I was gettin ready to leave and I -- I just said, fuck it. Let's do this. Told em what he needed to know."
Failure to Object Based on Miranda
Defendant claims his trial counsel rendered ineffective assistance when he did not object to the introduction of his confession to Detective Linke on the basis of Miranda. We conclude defendant did not suffer ineffective assistance as there was no Miranda violation to which counsel could object. Defendant was not in custody at the time he confessed to Detective Linke and thus was not entitled to Miranda warnings.
A. Additional background information
Detective Linke first spoke with defendant by telephone on September 8, 2009. Defendant stated he was willing to come in and speak with Linke. He wanted to clear his name. In a phone conversation on September 16, 2009, defendant agreed to meet with Linke the following day. On September 17, 2009, defendant arrived at the sheriff's station before Linke did at 6:52 a.m.
Detective Linke escorted defendant into an interview room. The room contained a table and two chairs. There were restraints in the room, but Linke apologized for them being there and said he would not be using them. Defendant was not restrained or handcuffed during the interview. Linke was in plain clothes and was not carrying a weapon. He sat away from the room's door, giving defendant unobstructed access to leave.
Linke told defendant he was not under arrest. Defendant understood he was not under arrest. Linke then asked defendant if he could keep the door closed. He did not want the two of them to be disturbed by others walking by. Defendant said that was fine.
Detective Linke next explained that because defendant was not under arrest, he was free to leave at any time. The conversation went as follows:
"DET. LINKE: . . . And another thing, knowing, um, understanding you're not under arrest, you came down here on your own free will, right?
"DET. LINKE: Okay. The one thing I wanna make sure you understand is that at any time we're talking, if you don't wanna talk to me anymore about this, just say John, I'm done. You don't even have to say you're done. You can just absolutely walk out. Walk right out the front door. It's entirely up to you. Does that make sense?
"DET. LINKE: That's how open I want this to be. I want you and I to sit here, discuss a little bit about the different things that, uh, have or have not been going on, whatever, and um -- but at any point you don't wanna talk anymore, you can go.
"DET. LINKE: I'll walk you to the door."
The interview lasted about three hours. During the first half, Detective Linke and defendant discussed basic information. Linke wanted to learn more about defendant and his family.
During the interview's second half, Detective Linke took a more direct approach. He explained that K. had spoken not only with a patrolman, but also with a forensic specialist trained in interviewing children. Linke said he had gone over K.'s statements to the specialist, and he told defendant, "[K.'s] not lying. She's not lying. Some things did happen to her. And there's some things you did to her. I know that. I know what happened . . . ." Linke told defendant he knew what had happened in the case but was more interested in learning why it had happened.
Detective Linke told defendant his impression was that "you figured it would be okay to come in here and just deny, deny, deny. That can't happen because it's not the truth . . . . What's important is I found out the truth on why. Alright? She went into very, very great detail about things. Very great detail. Nothing has changed between you and I as we sit [here]. And, I wanna get into some more detail about why -- specifically why. What was going through your mind that resulted in this happening?"
Linke asked defendant why he molested K. Defendant initially denied molesting her. Linke kept pressing the issue: "I know what happened and I know what you did to her. I want to know why. You -- you can't sit and just hold it at that saying, no, nothing happened. I know it happened . . . . I know it. There isn't a doubt in my mind. And there isn't a doubt in your mind. Because you know what happened. . . . Eight-year-olds don't fabricate. They wouldn't even know how to fabricate. They wouldn't even know how to start to come up with things like this. . . . Eight-year-olds . . . cannot do that unless they lived it."
At this point, defendant asked to leave and go to work, but then he confessed. The conversation went as follows:
"DET. LINKE: You got to be honest with me. You have to be honest with me . . . , we're past the what happened. I know what you did to her. I know what is what. You ...