People v. Morales

         [Certified for Partial Publication.^[*]]

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[Copyrighted Material Omitted]

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         [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.

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          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.

         [257 Cal.Rptr.3d 504] 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 ...