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The People v. Robert Joseph Zmrzel

May 1, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROBERT JOSEPH ZMRZEL, DEFENDANT AND APPELLANT.



(Super. Ct. No. 6282501)

The opinion of the court was delivered by: Hull , J.

P. v. Zmrzel

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Robert Joseph Zmrzel sexually abused his adopted daughter, S., on numerous occasions over an eight-year period beginning when she was eight years old. Defendant was convicted by jury of one count of continuous sexual abuse of a child (count 1), two counts of oral copulation of a person under 16 years of age (counts 8 & 9), two counts of committing a lewd or lascivious act on a child of 15 years (counts 10 & 11), one count of attempting to commit a lewd or lascivious act on a child of 15 years (count 13 (lesser included)), and one count of simple battery (count 12 (lesser included)). After dismissing counts 8 and 9, as those crimes were alleged to have occurred during the time period covered by count 1, the trial court sentenced defendant to state prison for an aggregate term of seven years, eight months.

On appeal, defendant contends: (1) the trial court prejudicially erred by denying his request for a psychiatric evaluation of S. in order to assess her competency to testify; (2) the trial court prejudicially erred by declining defendant's request to instruct the jury that the defense expert, Charles L. Scott, M.D., was not allowed to conduct a psychiatric evaluation of S.; (3) the trial court violated defendant's rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda) by (a) allowing testimony that defendant had been given an opportunity to make a statement to police and had done so, and (b) requiring the jury to be informed, during closing argument, of the content of this statement; (4) the trial court prejudicially erred by allowing the jurors to retain, during the remainder of the trial, their copies of the transcript of a pretext phone call between S. and defendant; and (5) the cumulative prejudice arising from the foregoing assertions of error requires reversal.

As we explain, the trial court was not required to order a psychiatric evaluation in order to determine whether S. was competent to testify. Nor was the trial court required to instruct the jury Dr. Scott was not allowed to conduct the requested psychiatric evaluation. Without deciding whether the trial court improperly required that the jury be informed of the content of a statement defendant made during custodial interrogation before he was advised of his Miranda rights, we conclude any error was harmless beyond a reasonable doubt. With respect to defendant's complaint that the jurors were allowed to retain their copies of the transcript of the pretext phone call, we also find no prejudice. Finally, defendant's claim of cumulative prejudice fails. Accordingly, we affirm the judgment.

Facts

In December 1999, S. and her three brothers were adopted by defendant and his wife, Laurie. The Zmrzels already had three children of their own. The family lived in a two-story house on a 13-acre farm in Newcastle, a small town between Lincoln and Auburn. At the time of the adoption, S. was nine years old. S. and her biological brothers lived with the Zmrzels during the year prior to the adoption becoming final.

Defendant began sexually abusing S. soon after she moved into the house. At bedtime, after Laurie went from room to room saying goodnight to the children, defendant would do the same. Defendant stayed in S.'s room longer than Laurie. Defendant would sit on the floor next to S., who was on the bottom bunk of a bunk bed. Because S. was having trouble reading, she would read to defendant for awhile and tell him about her day. Defendant would then say goodnight to S. and tell her he loved her. S. would respond: "I love you too, dad." Defendant "got mad" if she did not tell him she loved him.

At some point during these nightly visits, defendant started to rub S.'s back while she read. He then started to reach beneath her underwear and place his hand on her buttocks and vagina. One night, when S. told defendant to stop, he "got really mad" and "started yelling" at her. S. also tried to end the touching by moving to the top bunk, wrapping herself tightly with her blankets, and sleeping as close to the wall as she could. These obstacles did not prevent defendant from molesting her. When S. was 11 years old, she began developing breasts. Defendant's bedtime routine continued as usual, except that he also began touching S.'s breasts.

When S. was about 12 years old, additional bedrooms were built upstairs. S. moved into one of these bedrooms. Around this time period, defendant started to kiss S., placing his tongue in her mouth, and kissed her neck, legs, and feet. He also began penetrating S.'s vagina with his fingers. When S. was about 13 or 14 years old, defendant began getting into bed with her. On one occasion, S. again told him to stop. Defendant "got violently mad" and "pushed [her] against the wall," asking: "[W]hat is wrong with you[?] Do you think this is something sexual or something[?]" On another occasion, he told S. that "he was in love with [her]" and "he didn't love [Laurie]." Defendant continued to kiss and touch her on a nightly basis.

When S. was about 14 or 15 years old, defendant began kissing her vagina. Defendant brought condoms into S.'s room, and would put on a condom and rub his penis against her vagina, saying that "he didn't ever want to take the chance of getting [her] pregnant." Defendant also told S. he was saving money to run away with her when she turned 18 and showed her a stack of $100 bills he kept locked in an "army box." Eventually, defendant bought a safe and S. believed he transferred the money to the safe.

The abuse ended when S. turned 16. One afternoon, defendant came into her bedroom while Laurie and most of the other children were at jujitsu practice. Two of the children were home, but not in the house. As S. explained the encounter with defendant: "I tried to leave, and he got mad and he grabbed my arm. And I told him that I was sick of keeping his dirty little secrets and I pulled away from him. And I ran down the stairs and he ran after me." S. then picked up a rocking chair that was in the living room, threw the chair at defendant, and ran into the bathroom, blocking the door with a towel drawer. As defendant yelled that he was going to break the door down, S. found a bottle of Nix head lice treatment under the sink and considered drinking it. Defendant's voice then went from "screaming and yelling" to "nice," as if he were "trying to calm [her] down." S. put the bottle of Nix away, waited for defendant to leave the house, and then ran away to a friend's house.

The next day, Laurie picked S. up at her friend's house and drove to her great-grandmother's house so that S. could have another night away from home to calm down. On the way, S. threatened to "keep running away." Laurie responded: "What do we have to do to make sure that doesn't happen?" S. then told Laurie she "did not want [defendant] coming into [her] room anymore." S. did not reveal what defendant had done to her. Laurie did not ask. Laurie then had a conversation with defendant and told him she did not want him spending time alone with S. in her bedroom. Defendant agreed. S. returned to the Zmrzel house. Defendant stopped coming into her room at night.

A couple days later, defendant brought S. down to the barn and showed her a gun that was in his truck. He told her that when she ran away, "his first response was to kill himself." Defendant and S. then went to his workshop and sat in her brother's truck. Defendant told S. he loved her, and she was "everything he ever wanted." He also told her he would not be coming into her bedroom anymore, but if she changed her mind about wanting to be with him, he would still be saving money for them to run away together when she turned 18. During this conversation, defendant had his arm around S. and put his hand inside her shirt. This was the last time defendant molested his adopted daughter.

About a month before S. turned 18, defendant found out she had a boyfriend. When S. returned home from spending the weekend at her Aunt K.'s house, she discovered one of her goats had died over the weekend. This particular goat had been sick, so the death was not a surprise. The location and condition of the body were. The goat was lying in the pasture with the back legs spread open and the testicles removed. It appeared as though the testicles had been "torn" from the body. S. told Laurie about the goat and said that if a wild animal had killed the goat, it would have taken more than the goat's testicles. Laurie responded: "Maybe someone did that." When S. asked who would have done such a thing, Laurie answered: "Dad was pretty mad when he found out about your boyfriend yesterday." Laurie then laughed and said: "[I]t's probably what he wanted to do to your boyfriend."

S. went back to her Aunt K.'s house. The following weekend, she told her aunt what defendant had done to her. A couple days later, S. reported defendant's crimes to Detective Michael Davis at the Placer County Sheriff's Department. S. also made a pretext phone call to defendant. During the call, S. told defendant it was only six days until she turned 18 and asked where he stood with respect to running away together. Defendant responded: "You want to go with me? Is that what you're saying?" He also cautioned: "There's no turning back if you do it." When S. said that she did, defendant insisted they wait until she turned 18 and asked: "What, what happened with you and that other guy?" S. answered: "Nothing." Defendant responded: "All right. You know I love you. You know that." He then asked: "And you don't fuckin' dump me in a month or a week or something like that?" S. asked if defendant would marry her. Defendant answered: "Yeah, I would. Don't, don't, don't be telling anybody this shit either."

S. then said she was "confused" and elaborated: "It's like, seriously, you are the only person that's ever loved me. I mean I don't, I don't understand why you would have touched me and tried to have sex with me and all that stuff if, if you didn't. I, I don't think that you would do that." Defendant responded: "I wouldn't. I would never do that. I'm telling you the truth." S. asked: "Is that why you touched me then and, and wanted to have sex with me really?" Defendant answered: "Because I love you. Because I wanted you, and it was a confused fucking mess that the alternative is a bullet in my head. That's the alternative." S. then asked whether he still wanted her "even like after two years now of like not even doing anything." Defendant answered: "I don't give a fuck about that if we ever do anything again. We don't ever have to do anything again. I'm dead serious. I don't need to do that. You don't want to do that, we don't do that ever."

S. then asked defendant why he touched her when she was eight years old. Defendant answered: "No, I didn't. Not, I didn't touch you like that when you were [eight]." After S. told him she remembered him putting his hands down her pants when she was eight years old, defendant responded: "Yeah, well that was stupid." And when she asked him why he touched her like that, defendant answered: "Because I loved you. I still love you." S. then asked whether defendant loved her more than Laurie, to which he replied: "Look I'll give everything up for you. If that's what you, if you're serious. If you're just testing me, don't, don't do it just to test me because I'll do it." S. responded: "So then it's me, it's not Mom?" Defendant answered: "Yeah, it's you. It's always been you. It's you." S. then asked him to confirm he spent time in her room and touched her because he loved her. Defendant answered: "Yeah" and "That's it. That's it."

Later in the call, S. asked whether the "oral sex" was also defendant's way of expressing his love. Defendant answered: "Yeah, I guess." He then admitted what he did was wrong and said: "When you care about somebody like that, I know I fucked up, okay? It'll be different from now on, though. It'll just be you and I." And when S. said, "I was just a kid, Dad," defendant responded: "I know. I'm sorry about that. Now it's just you and I. Forget about that. I just want you. I don't want anything, anything. Just, just want to be with you. Just want to talk to you; just want to do things with you." Defendant denied touching any of the other children.

Detective Davis arrested defendant later that day. The house was searched. Defendant's safe did not contain any money, but an "army box" in the garage contained two large stacks of $100 bills, totaling $39,000. Laurie was also interviewed by Detective Davis. After listening to the pretext phone call, Laurie confronted defendant with what she had heard during the call. Defendant denied being in love with S. and denied touching her before she was 16 years old, but admitted to three instances of oral copulation that he claimed happened when she was 17 years old.

Discussion

I

Request for a Psychiatric Evaluation

Defendant contends the trial court prejudicially erred by denying his request for an order compelling S. to submit to a psychiatric evaluation in order to assess ...


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