People v. Alvarez-Ramirez

• Decision Date: 27 October 2016
• Docket Number: G052414
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL ALVAREZ-RAMIREZ, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL ALVAREZ-RAMIREZ, Defendant and Appellant.

G052414

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

October 27, 2016

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 13CF3337)

OPINION

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed in part and reversed in part.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Juan Manuel Alvarez-Ramirez of six counts of oral copulation or sexual penetration with a child 10 years of age or younger between 2007 and 2011 (Pen. Code, § 288.7, subd. (b); counts 1-6)¹ and three counts of lewd act upon a child under 14 years of age (§ 288, subd. (a); counts 7-9), and found true the allegation that counts 7 and 8 involved substantial sexual conduct with a child (§ 1203.066, subd. (a)(8)).

The court sentenced him to an aggregate prison term of 75 years to life on counts 1, 3, 4, 5, and 6 (consisting of consecutive terms of 15 years to life), plus a determinate term of 10 years on counts 7, 8, and 9 (consisting of a six-year term on count 7 and consecutive two-year terms on counts 8 and 9). The court stayed execution of sentence on count 2 pursuant to section 654.

Defense counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, after finding no issues to argue on defendant's behalf. Upon reviewing the record, we identified an arguable issue for which we sought supplemental briefing. The arguable issue involved the continuation of a police interrogation after defendant potentially invoked his right to remain silent. Following our independent review of the record and the parties' briefing on the issue requested, we conclude defendant's rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) were prejudicially violated as to counts 1 through 6. Accordingly, we reverse the judgment as to those counts.

FACTS

The Victim's Testimony

The victim M.G. lived with defendant (her step-grandfather), her grandmother, and their two minor children, in a home where everyone slept in the sameroom. M.G. slept on the top bunk of a bunk bed. Beginning when she was in the first grade, and continuing until she was in the third grade, defendant molested her. (RT 42.)

Defendant would get into bed with M.G., expose his penis while they were both nude, and, variously, put his fingers in her vagina, rub her breasts, kiss her, make her touch his penis, and/or orally copulate her. Another incident took place when M.G. was in the ocean at the beach. Another happened in the kitchen.

Once, when they were in the bunk bed and defendant was licking M.G.'s vagina, defendant's nose started to bleed. He got out of bed and went to the bathroom, leaving a stain on the bedding. M.G. lied to her grandmother about the stain, because she did not want her grandmother to know.

When M.G. was in the third grade, the molestations stopped.

But four years later, when M.G. was in the seventh grade and laying on the living room couch, defendant kissed her, rubbed his hands over her shoulders and across her chest, and told her he loved her. Twice, she told him to stop. Finally, defendant got up and walked to the kitchen.

M.G. told her friends about the incident. Later that week, M.G.'s school principal asked her if something was happening with her grandfather. M.G. eventually told the police the truth because she was afraid defendant might be molesting her brother or sister.

The Police Interrogation

Officer David Juarez, a certified Spanish speaker, interviewed defendant in Spanish. Officer Fernandez was also present during the interrogation.

At the outset, defendant waived his rights under Miranda, supra, 384 U.S. 436. After some preliminary questions about the family and the living arrangement, Juarez told defendant that M.G.'s school principal had said that possibly someone in the home had touched M.G. Defendant admitted he "tried touching her not long ago." Hestated the incident had happened one week earlier, when he kissed M.G. on the cheek and touched her stomach, but she resisted him and he stopped touching her.

Juarez then asked defendant to talk about other times this had happened in other years. Defendant said, "Can I not answer? Or I have to answer . . . ." Juarez said defendant did not have to answer, but the officers were there "to know the truth." Juarez explained it was important for defendant to tell the truth, both for M.G.'s sake and so that people would not think defendant was an animal. Defendant said, "I prefer not to answer." The officers then spoke to each other in English, with Fernandez saying, "Want to push him?" Juarez then asked defendant in Spanish, "Why don't you want to talk about those things, sir?" Defendant replied, "I feel bad. I don't . . . want to talk right now." Juarez exhorted defendant to be a man and admit the mistake, and asked defendant if he needed help for his abnormal problems. Juarez then asked defendant whether he thought he would stop and not touch M.G. anymore. Defendant replied, "I think that it could . . . be like that. . . ." Juarez then talked about what M.G. had told them (including M.G.'s accusation defendant put his finger in her vagina when she was seven years old). Juarez asked defendant why he did it and whether he had had a relationship with his wife. Defendant said, "I prefer not to talk about that right now please." Juarez asked, "What do you want to talk about then?" Defendant reiterated, "I think that I don't want to talk right now, I don't, don't feel very good, I feel bad."²

At defendant's trial, the police interrogation (up to the last statement quoted above) was played for the jurors, who were also given a copy of the transcript.³

DISCUSSION

In his supplemental opening brief, defendant contends he invoked his right to remain silent at some point during the interview and hence all "further prefatory statements and remarks by Juarez and [defendant's] replies were subject to exclusion."

The law on post-Miranda-waiver invocation of the right to silence

In Miranda, the Supreme Court made clear that, even if an interviewee initially waives his or her Miranda rights,⁴ he or she may later invoke them and thereby terminate the interrogation: "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producinga statement after the privilege has been once invoked." (Miranda, supra, 384 U.S. at pp. 473-474, fn. omitted.)

The Supreme Court revisited the foregoing passage from Miranda in Michigan v. Mosley (1975) 423 U.S. 96 (Mosley): "The critical safeguard identified in the passage at issue is a person's 'right to cut off questioning.' [Citation.] Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.'" (Id. at pp. 103-104.)

In Mosley, when the defendant stated he did not want to discuss certain robberies, the detective "immediately ceased the interrogation and did not try either to resume the questioning or in any way to persuade [him] to reconsider his position. After an interval of more than two hours, [the defendant] was questioned by another police officer at another location about an unrelated holdup murder. He was given full and complete Miranda warnings at the outset of the second interrogation." (Mosley, supra, 423 U.S. at p. 104.) The Supreme Court concluded: "This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation." (Id. at pp. 105-106.)

The right to invoke Miranda after initially waiving it "is 'designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.'" (Davis v. U.S. (1994) 512 U.S. 452, 458 (Davis) [as to the Miranda right to counsel].) As to the Miranda right to counsel, the "cases hold that if a defendant indicates in any manner that he wishes to consult with an attorney, the interrogation must cease." (People v. Johnson (1993) 6 Cal.4th 1, 27, disapproved on another point in People v. Rogers (2006) 39 Cal.4th...