(Super. Ct. No. 10F03744)
The opinion of the court was delivered by: Robie , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Convicted of repeatedly sexually abusing his nine-year-old niece, for which he was sentenced to 42 years to life in prison, defendant Ronald Meza appeals, contending the trial court erred when it: (1) refused to suppress a statement he made to a police officer because the officer did not give him Miranda*fn1 warnings; (2) overruled his objection to his brother's testimony that he saw "guilt" in defendant's eyes; (3) refused to exclude testimony from a prosecution expert on child sexual abuse accommodation syndrome; and (4) instructed the jury with CALCRIM No. 1193. Defendant also contends the evidence was insufficient to support his conviction of felony false imprisonment by menace.
We conclude that none of the claims of error defendant preserved for appellate review has merit, but we agree the evidence was insufficient to support defendant's conviction of false imprisonment by menace. Accordingly, we will reduce the conviction to misdemeanor false imprisonment and remand for resentencing, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
From 2007 through 2010, the victim, who was born in November 2000, lived with her mother and father and her father's brother (defendant), who was born in 1968. Defendant did not work most of the time, but the victim's parents both did, so defendant would watch the victim after she got out of school at 2:15 p.m. until her mother came home around 4:00 p.m.
Sometime before January 2010, defendant began touching the victim inappropriately while they were home alone together. In the first incident, which occurred in the victim's room, defendant licked her "front private." Thereafter, the abuse occurred in the living room and (mostly) in defendant's room. When it occurred in defendant's room, he would tell the victim to go there, which she did because she "didn't know if he was going to hurt [her] in any other way." There, he would kiss her on the back, put his penis between her buttocks, and sometimes lick her "front private." When he was done, he would tell her not to tell her parents, and she complied "[b]ecause [she] was scared he would hurt [her] family."
In June 2010, the victim's mother announced that the salsa she made as a side business was going to be placed in major supermarkets. The victim started to cry, then told her mother she had to go talk to defendant and would be right back. The victim had decided to tell her mother about the abuse because she feared her mother was going to be out of the house more, and the victim wanted the abuse to stop. The victim went to defendant's room and told him she was going to tell her parents what he did to her. Defendant told her not to tell, but they were interrupted by her father. At that point, the victim went to her mother's room and told her mother that defendant had been having sex with her. She did not tell her mother about the licking.
After calling defendant's sister, the victim's mother went and told the victim's father. He became upset and confronted defendant. Eventually, there was a physical altercation, and the police were called. When asked to tell his side of the story, defendant told one of the police officers that about a year earlier, when he was drunk, he had touched the victim, but he did not remember where he touched her or how it happened.
Defendant was originally charged with four counts of committing a lewd and lascivious act on a child under the age of 14 for putting his penis on the victim's buttocks. Around three months later, the victim told her mother about the licking. Subsequently, the charges were amended to include five counts of committing a lewd and lascivious act on a child under the age of 14, two counts of committing an act of oral copulation on a child 10 years of age or younger, and one count of false imprisonment effected by violence, menace, fraud, or deceit.
In March 2011, a jury found defendant guilty on all counts. The court sentenced him to an aggregate prison term of 42 years to life.
Before trial, the prosecutor moved in limine to admit a statement defendant made to Elk Grove Police Officer Winston Gin, arguing that "Officer Gin's brief detention of the defendant did not amount to custody for the purposes of Miranda." In turn, defendant moved to exclude the statement.
The court held an Evidence Code section 402 hearing on the two motions, at which Officer Gin testified. According to Officer Gin, he arrived at the scene at 10:09 p.m. in response to "a call from a young reporting party" who had made "an accusation that her uncle had molested her." Upon arrival, Officer Gin, along with two other officers, observed a loud disturbance between a male and a female and another male. It appeared to Officer Gin "a little like it was going to . . . get physical very, very soon." Accordingly, the officers separated the parties. Officer Gin contacted defendant, who was "the target of all of the verbal abuse from the other two," "removed him from their immediate vicinity," "got him by [Officer Gin's] police car," and "patted him down for officer safety." Officer Gin directed defendant to come over to the car and asked defendant to have a seat in the back. Officer Gin employed no force, and defendant came voluntarily. Officer Gin did not place defendant in handcuffs, but he did close the door, and defendant would not have been able to open it from inside.
After placing defendant in his patrol car, Officer Gin went to give assistance to the other two officers, who were dealing with the other man and the woman (the victim's parents). Around 10:15 p.m., Officer Gin returned to the patrol car and spoke with defendant from the front seat. The officer asked defendant for his side of the story, and defendant made a statement in which, in addition to describing the circumstances surrounding the accusation of abuse and the resulting confrontation with the victim's parents, he told Officer Gin that about a year earlier, when he was drunk, he might have touched his niece, although he did not remember where or how he touched her.
The trial court concluded that it did not appear "this [wa]s a detention" because Officer Gin "put [defendant] in the back of the police unit primarily for his safety and the safety of the officers." The court also concluded that it did not appear "to be an interrogation either" but was instead "a pre-investigatory" determination "of essentially what's going on so they can resolve the ...