People v. Morales

         CERTIFIED FOR PARTIAL PUBLICATION^[*]

          APPEAL from the Superior Court of Riverside County No. RIF1506320. Thomas Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

          Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Craig H. Russell, and Helen H. Hong, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

          RAPHAEL J.

         Defendant and appellant Hipolito Osorio Morales was charged with two counts of oral copulation or sexual penetration of a child under 10 (Pen. Code, § 288.7, subd. (b))^[1] and seven counts of committing a lewd or lascivious act on a child under 14 (§ 288, subd. (a)). During his trial, the trial court admitted into evidence, after jury deliberations began and without any limiting instructions, a video and transcript of Morales's police interrogation. In a pre-Miranda^[2] portion of that interrogation, an officer made statements to the effect that children had informed law enforcement that Morales had molested them; he (the officer) knew Morales was lying; he could tell Morales was lying from his experience as an investigator; and Morales committed the crimes. Although the officer testified at trial, the parties had agreed to limit questioning to the post-Miranda portion of the interrogation only. The jury found Morales guilty, and he was sentenced to 175 years to life.

         In the published portion of this opinion, we address Morales's contention that admission of the officer's statements from the pre-Miranda portion of the interrogation violated the confrontation clause. According to Morales, because the full interrogation was admitted only after the officer was excused and the jury began its deliberations, he was deprived of the right to confront the officer about the pre-Miranda statements described above, none of which were repeated after Morales was read his Miranda rights. We find no confrontation clause violation. In order to implicate the confrontation clause, a statement must be testimonial, meaning that it must be made with sufficient formality and with the primary purpose of creating a substitute for trial testimony. Accusatory statements made by law enforcement in an interrogation will, absent unusual circumstances, satisfy neither of these requirements.

         We address Morales's other contentions in the unpublished portion of this opinion. We find them unmeritorious and therefore affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 2012, Morales and his wife^[3] moved into a house in Perris. A.C., her brother G.C., and their parents also lived in the house.

         A.C., who was born in 2007, testified that after Morales moved in, he began to touch her in inappropriate ways, such as by rubbing and touching her rear, kissing her, and pulling down her shorts. Morales would also touch and put his tongue inside A.C.'s mouth and vagina and touch her breasts underneath her clothes. Although A.C. would tell Morales to stop, he would not listen. Neither A.C.'s parents nor Morales's wife would be around when this occurred. According to A.C., Morales would promise to give A.C. money and make her a dollhouse. A.C. did not tell her parents about Morales's actions because she was afraid they would think she was “nasty” and would not love her anymore.

         G.C., A.C.'s younger brother, testified that he would see Morales kiss A.C. and make her touch Morales's “private part.” G.C. stated that Morales would also fondle G.C.'s penis and digitally penetrate G.C.'s anus. A.C. had observed Morales touch G.C.'s “private part” as well. A.C. did not want to tell their mother because, as with her, A.C. was afraid that their mother would think G.C. was “nasty” and no longer love him. G.C. stated that he was scared at the time and remains embarrassed about what happened.

         S.M., a friend of A.C., lived next door. S.M. testified that on various occasions Morales had touched her anus and vagina, pulled down her skirt, and kissed her rear. On one occasion, S.M. observed Morales attempt to enter a closed room while A.C. was changing inside and that Morales did not stop after A.C. told him to. S.M. was scared to tell her mom about what Morales did because she was afraid that she would get in trouble for not telling her before. S.M. also stated that what Morales did was embarrassing to think about and that when she begins to remember it, she gets sad and tries to stop remembering.

         On October 7, 2015, A.C. was at S.M.'s house, and the two went to A.C.'s house to get dolls. At some point after the two arrived at A.C.'s house, Morales touched A.C.'s rear over her shorts for two to three minutes. It is not clear whether Morales touched S.M. as well. According to the girls, Morales gave A.C. a handwritten letter and told her not to show anybody. The letter read: “I promise your little house in three weeks. This is a real promise because I love you so much. You are my good girl, my better girl, my favorite girl, my beautiful girl. You are so nice. You are so nice [A.C.]. Remember your little house will be delivered 10 - 23 - 15.” Later that day, A.C. informed S.M.'s mother that Morales had touched her, at which point S.M.'s mother called the police.

         Morales was interrogated by Deputy Sheriff Manuel Campos at the Perris police station that same day. At the beginning of the videotaped interrogation, which was conducted in Spanish and later transcribed, Campos repeatedly informed Morales that he was not under arrest. After some initial questions about Morales and his relationship to the girls and their families generally, Campos relayed A.C.'s and S.M.'s claims that Morales had been “touching them on their bodies.”^[4] Morales denied the claims, but as the interrogation continued, Campos began to accuse Morales, telling him that he (Campos) knew Morales was lying about whether he molested the girls. For example, Campos variously stated that: “[Y]ou lied, ” “I don't believe you, ” “I noticed that you went from lying to telling me the truth, ” “I know when someone is lying to me and I know when someone is telling me the truth, ” “I know that you pulled down those - those girls' pants, ” “I already know that you did it, ” “these girls - all boys and girls speak the truth, ” and “I'm telling you right now that I know the truth.” At one point, Campos stated that he could tell, based on professional experience, that he knew Morales was lying: “I've been almost - almost 20 - 20 years doing this job. [¶]... [¶] And I have spoken to a lot of people, and I can look at you now and I can tell you that I know that you're not telling me the truth.” Campos also stated that there was additional evidence that Campos would not reveal to Morales: “When - when all of this goes to court they'll know that you're lying to me. Because I also have proof I'm not showing you. Okay?” In addition, Campos relayed statements from A.C. and S.M. about how Morales had touched them, such as Campos's statement that “one girl... says that you pulled down her - you pulled down her pants and that you - that you gave her a kiss down there.” In response to Campos's questioning, Morales admitted that he had touched A.C. and S.M., although not sexually, and that he wrote the letter to A.C.

         At a point in the interrogation after Campos made all of the above statements, Campos arrested Morales and read him his Miranda rights. (See Miranda v. Arizona, supra, 384 U.S. 436.) The interrogation then continued with Morales denying that he ever touched A.C. or S.M. sexually.

         At trial, both Morales and Campos testified, as did the three children and a handful of other witnesses. Before either Morales or Campos took the stand, the People indicated on the record that they intended “to only cover the portions of [Morales's interrogation] that was discussed with [Morales] post-Miranda.” Campos testified before Morales, and the questions focused only on the post-Miranda portion of the interrogation. When Morales later took the stand, however, he testified that he had lied to Campos during the interrogation about touching the girls and writing the letter, saying he did so because he felt confused, scared, and threatened by Campos. Morales stated that he lied to Campos because he did not know what Campos was accusing him of, because Campos was threatening him by asking “strong” questions and standing “too close, ” and because he (Morales) was raised in a small town in Mexico “where there's a lot of abuse in authority” and was therefore afraid of what Campos might do.

         To the People, Morales had opened the door to the entire interrogation by characterizing it as coercive. However, the People did not seek to offer the full interrogation into evidence immediately following Morales's testimony. Rather, after both sides rested their case and delivered closing arguments, and after the jury was given instructions and retired to deliberate, the People, in a final “housekeeping” discussion with the trial court, requested that the full interrogation be admitted into evidence. Morales objected, contending that admission of the full interrogation constituted “evidence that is presented to the jury after the close of evidence” and that admission would violate his Sixth Amendment right to confront witnesses against him. The trial court disagreed and allowed the full interrogation to go to the jury.

         The jury found Morales guilty on all counts. At sentencing, the trial court sentenced Morales to a term of 175 years to life. The trial court also imposed $40, 000 in direct victim restitution ($25, 000 to A.C., $10, 000 to G.C., and $5, 000 to S.M.), among other fines and fees. The trial court arrived at $40, 000 by awarding $5, 000 to each child for each year of abuse they suffered. The trial court noted that the People had requested $50, 000 per year per child pursuant to People v. Smith (2011) 198 Cal.App.4th 415, which had upheld such a formula. After discussing the issue with the parties, however, the trial court reduced the amount to $5, 000 per year per child. The trial court stated: “These children have suffered greatly. Their innocence has been taken away. They've witnessed things that no child should ever witness. It's going to ...