California Court of Appeals, Fourth District, Second Division
[Certified
for Partial Publication.[*]]
Page 354
[Copyrighted Material Omitted]
Page 355
[257
Cal.Rptr.3d 503] APPEAL from the Superior Court of Riverside
County. 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. (Super.Ct.No. RIF1506320)
COUNSEL
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.
Page 356
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 Moraless 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.
[257
Cal.Rptr.3d 504] In the published portion of this opinion, we
address Moraless contention that admission of the officers
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 Moraless 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 ...