People v. Torres

• Decision Date: 12 July 2018
• Docket Number: D072610
• Citation: 25 Cal.App.5th 162,235 Cal.Rptr.3d 478
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Antonio TORRES, Defendant and Appellant.

25 Cal.App.5th 162

235 Cal.Rptr.3d 478

The PEOPLE, Plaintiff and Respondent,

v.Antonio TORRES, Defendant and Appellant.

D072610

Court of Appeal, Fourth District, Division 1, California.

Filed July 12, 2018

Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Felicity Senoski and Joseph Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

NARES, J.

A jury convicted Antonio Torres of two counts of committing a lewd act with a minor under 14 years old ( Pen. Code, § 288, subd. (a) ) and found true the allegations that he had substantial sexual conduct with the minor. ( Pen. Code, § 1203.066, subd. (a)(8).) The court sentenced him to a total term of eight years and ordered him to pay various fines and fees, including victim restitution in the amount of $5,925.75.

Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. She presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 ( Wende ). Under Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, she listed as possible, but not arguable, issues whether: (1) defense counsel was ineffective for failing to raise Miranda¹ and voluntariness of confession issues, (2) sufficient evidence supported the lewd conduct and substantial sexual conduct findings, (3) the trial court erred by admitting a forensic interview into evidence, (4) the court erred when it gave the jury a pinpoint instruction defining masturbation, (5) the court erred by imposing the middle term sentence rather than the lower term sentence, and (6) the court erred by imposing consecutive sentences.

We requested supplemental briefing to address whether defense counsel was ineffective for failing to file a motion to suppress Torres's police interview statements under Miranda . Both counsel responded to our request. We conclude that while the interrogation was not custodial when it began, the totality of the circumstances show that it became custodial, and Torres should have received Miranda warnings when the detectives essentially told Torres that they would not leave, and he could not go home, until Torres told them the truth based on the evidence they had against him.

We also conclude that Torres would have prevailed on a suppression motion, that the failure to file a suppression motion was prejudicial. We reverse the judgment based on ineffective assistance of counsel. Accordingly, it is unnecessary for us to consider the other issues raised in Torres's Wende brief.

FACTUAL AND PROCEDURAL BACKGROUND

The Allegation and Preliminary Investigation

In February 2017 73-year old Torres, a Mexican immigrant with no formal education, rented a room from O.H. (Mother) and her husband (Father). The couple's five-year-old daughter, Y.C., also lived at the residence. The couple and Y.C. referred to Torres as "Don Tonio." Torres spent most of his time in his room, but would occasionally watch television in the living room with Y.C.

One day after Mother had given Y.C. a bath, she told Mother that she wanted to tell her something and then said " ‘I don't know why Don Tonio always touches my little butt.’ " After initially denying that she and Y.C. had a name for Y.C.'s private parts, when the prosecutor used the term "colita," Mother stated that the term referred to Y.C.'s "buttocks" and "private parts," including her vagina. When Mother asked Y.C. exactly what Torres had done, Y.C. stated that "he always touched her colita and showed her that long thing" and that Y.C. pointed at Y.C.'s vagina. Y.C. also relayed that Torres had told Y.C. to not tell Mother. Father confronted Torres who denied the allegation. Father called the police and Torres moved out.

Two days later, San Diego Sheriff's Detective David Brannan followed up on the report and arranged for Y.C. to receive a forensic medical examination that day and a forensic interview about a week later. The forensic examination revealed no physical findings. The doctor explained that no physical findings could still be consistent with fingers in the genitalia based on multiple factors, including a child's immature concept of penetration, the use of a lubricant, or tissue healing.

During the forensic interview, the interviewer established that Y.C. knew the difference between the truth and a lie and that Y.C. had promised to tell the truth. Y.C. stated she was there because Don Tonio, who used to live at her house, had touched her "cola" with his hand more than once. The touching always occurred when Y.C. was in the living room. Y.C. stated that she was wearing a nightgown and that Torres touched her over her panties. She then stated that Torres had touched the inside of her cola, that he "always was touching [her] cola," and that he told her to not tell Mother.

The Police Interview

About two weeks later, Detective Brannan and Detective Cabrera, who spoke Spanish, visited Torres where he was currently living. Detective Brannan asked Torres questions in English, Detective Cabrera translated the questions into Spanish for Torres and then translated Torres's responses into English for Detective Brannan. Torres agreed to speak to them after the detectives told him that he was not under arrest, was free to leave, and did not need to speak to them. They then explained that, for privacy, they wanted to talk to him in their parked car.

The vehicle was unmarked, both detectives wore plain clothes and no weapons were visible. Detective Brannan sat in the driver's seat, Torres in the front passenger seat, and Detective Cabrera sat in the rear seat behind Torres. The car doors were closed and the engine was running to power the air conditioning.

Torres believed that the detectives were there to talk to him because he had urinated in the yard. After Torres explained this, the detectives asked Torres to provide a saliva sample for testing. Torres agreed. The detectives explained that DNA could be used to test if a person touched another person, that Torres's DNA was being tested in the car's trunk against other evidence, and that they would know the results in a couple of minutes. When asked why he thought the detectives were conducting a DNA test, Torres stated "No, to know if—if I touched the little girl or what?" When asked what the little girl said, Torres replied that the girl told her mom that he had grabbed the girl in her private part, meaning her vagina, but that the allegation was not true. When asked how many times he touched the girl's vagina, Torres stated, "No, not never," and "No. No. No. She's a little girl (unintelligible) of four years."

When Torres expressed the belief that the girl and Mother had seen his penis when he was outside urinating, the detectives explained to Torres that a child psychologist spoke with the girl and she never claimed that she saw his penis. When the detectives explained that the girl claimed that Torres had touched her vagina with his hand, Torres responded:

"Uh, no. Why? I grabbed her. She was in shorts and small skirt. I grabbed her but how was I, uh, if—if I got her in my arm like this, because I saw that she got frightened when—when I turned and since I—I wasn't there, she got frightened and thought—she probably thought it was another person. And she turned and [I said] ‘it's me’ (unintelligible)."

Detective Brannan then had Torres touch Brannan's shirt and told Torres that Torres's DNA was now on the shirt. The detectives told Torres that a doctor examined the girl's vagina and found DNA that belonged to an adult male and that they were currently testing Torres's DNA against the DNA found on the girl's vagina. When asked what he thought the results would be, Torres stated "Well, I believe that nothing is—nothing is gonna come out, I say, so—"

The detectives explained that they would write a report to the judge regarding the results of the investigation and would need to explain why Torres's DNA was together with the girl's DNA. They told Torres that they knew he had not put his penis in her vagina, put his mouth on her vagina, put her mouth on his penis, put his penis in her anus, put his mouth on her anus, or put his fingers in her anus, but they claimed that they would be able to prove that Torres had touched the girl's vagina with his hand.

The detectives then asked Torres if he wanted the judge to think he was an honest man who made a mistake or "an animal." Torres responded, "No, well, I don't know how—" The detective asked, "So, please tell me that you're an honest man who just made a mistake because the only other alternative is that people are gonna think you're an animal." The detectives told Torres to have the courage to admit his mistake and, although they knew Torres did not want to say what happened, that they already knew what happened and could prove it scientifically.

The detectives again told Torres that the conduct was "minimal" and it was not like he had put his penis in the girl's vagina. They stated, "So, you have to, like I told you have courage to admit your mistake. I made a mistake. This is what I did." They explained that they could prove what happened because the scientific test was being conducted in the trunk of the police car, but the judge would want to hear Torres's own words about what happened. Torres stated, "Like I tell you chance over her shorts I may have put and—and (unintelligible) and there—there it'd come out with that, right?" When asked to explain again, Torres stated, "I may have put fingers upon grabbing her over her shorts because—" Torres explained that he put his hand on the girl's shorts when he grabbed her to give her a hug.

The detectives told him that the problem with this story was that the DNA was found inside the girl's shorts, that it was important for Torres to be honest, and that Torres should not say something that they know did not happen. They...