The People v. Salazar
| Decision Date | 13 December 2010 |
| Docket Number | No. 08F05505,C063384,08F05505 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. SALVADOR GARROLA SALAZAR, Defendant and Appellant. |
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In a bench trial, the trial court convicted defendant Salvador Garrola Salazar of one count of engaging in sexual penetration with a child 10 years old or younger (Pen. Code, § 288.7, subd. (b)), and sentenced him to a state prison term of 15 years to life.
On appeal, defendant contends the trial court erred prejudicially in failing to suppress two statements that defendant made to the police, and in admitting into evidence the victim's statements to a forensic nurse and to his father.
We shall affirm the judgment.
The victim, G.G., was five years old at the time of trial. In June 2008, when G.G. was four, he lived with his father (Gerardo), mother (Maria), sister (Nancy), and uncle (defendant).
On June 12, 2008, both of G.G.'s parents had to go to work. Normally, when Maria went to work, she would drop both G.G. and Nancy off at school, but on this day, G.G. refused to stay at school. Maria took him back home where she left him with her brother, defendant. Defendant and G.G. were the only ones at the house until G.G.'s father, Gerardo, came home from work.
When Gerardo arrived home, G.G. went to him and said that defendant had done something to him in the back. G.G. said defendant's name, the word blood (in Spanish), and pointed to his rear end. At the time, Gerardo did not give much thought to G.G.'s statements and took G.G. with him to pick up Nancy from school. When Gerardo and his two children returned home, Maria was there too; defendant had left the house.
G.G. went to his mother and told her that defendant had done something to him in the back, that blood had come out, and that defendant had cleaned it off. G.G. also told his mother that he was in pain. Gerardo and Maria then looked at G.G.'s rear end and could tell he had been hurt, and they feared he had been abused. G.G.'s parents took him to the hospital but were told they needed to file a police report before an examination could be conducted. The parents took G.G. home, filed a policereport, and took him to be treated the next day; he was treated by a pediatric nurse practitioner, Cathy Boyle.
Nurse Boyle, when treating children who are suspected victims of child abuse, examines the child from head to toe, an examination which she performed on G.G. The purpose of this exam is to "identify and treat" injuries the child may have sustained. During Boyle's exam of G.G., she asked him whether he had any "owies"; G.G. said yes and pointed to his rear end. Nurse Boyle asked "who did that?" and G.G. said defendant's name.
After conducting the full body exam, Nurse Boyle reported that G.G. had a large laceration in his anal area and that it was a very recent injury. Furthermore, Boyle indicated that G.G.'s injury was consistent with penetration by an object larger than one finger.
As will be explained in detail in the discussion, on July 3, 2008, defendant made an incriminatory statement to the police. Four days later, defendant made another such statement.
Defendant contends the trial court committed prejudicial error in not suppressing his July 3, 2008 statement to the police.
Before trial, defendant moved to suppress this statement on the theory that because he was subject to "custodialinterrogation," the statement was inadmissible as he had not been given his Miranda rights.1 The trial court denied the motion, finding that defendant was not subject to "custodial interrogation" on July 3, 2008.
Under Miranda, "'the prosecution may not use statements... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.'" (People v. Farnam (2002) 28 Cal.4th 107, 179, italics added.) In the absence of custodial interrogation, Miranda does not come into play. (People v. Mickey (1991) 54 Cal.3d 612, 648.)
In deciding whether defendant was subject to custodial interrogation, (People v. Stansbury (1995) 9 Cal.4th 824, 830.)
Detective Juan Hildago of the Sacramento County Sheriff's Department was assigned the investigation of this matter. On July 2, 2008, Hidalgo and his partner drove to defendant's place of work, a Carl's Jr. in Rocklin, California. The deputies met with defendant and asked whether he would be willing to speak with them at the police station. Defendant replied that he was too busy at the moment but that he would be available the next day. The conversation ended and the detectives left.
The next morning, July 3, 2008, Detective Hildago received a phone call from defendant asking for a ride to the station since he did not have transportation. Hildago and his partner went to defendant's workplace and drove defendant to the sheriff's station in an unmarked squad car. Before driving to the station, Hildago informed defendant that he was not under arrest and told him that they were just going to the station for an interview. At no point was defendant handcuffed. Hildago also agreed that he would give defendant a ride back when the interview ended.
At the station, defendant was taken to an interview room. Detective Hildago closed the door but informed defendant that the room was not locked, explaining that he was merely closing the door for privacy. Defendant was apprised that he did not have to speak with Hildago, that he could leave at any time, and again told he was not under arrest.
During the interview, Detective Hildago asked defendant whether he had ever inappropriately touched his nephew, G.G.
Initially, defendant said he had not, but he later changed his answer. Defendant stated that in June 2008, when G.G's parents were at work, he pulled G.G.'s pants down and placed his finger inside G.G.'s anus for approximately five minutes. He then told Hildago that afterwards, he went outside to work on his car but came back in when he heard G.G. crying, noticed blood coming from G.G.'s anus, and cleaned the blood with a towel which he threw in the trash.
When the interview ended, Detective Hildago and his partner drove defendant back to his workplace.
The present case is factually similar to a recent California Supreme Court case, People v. Leonard (2007) 40 Cal.4th 1370 (Leonard). The defendant in Leonard was a suspect in a string of murders in Sacramento and wanted for questioning. The police went to the defendant's apartment and asked him if he would accompany them to the sheriff's station to be fingerprinted and answer questions. (Id. at p. 1398.) The defendant stated that he was too busy at the moment but that he would be available the next day. (Ibid.) The following day, because the defendant had epilepsy and could not drive, the police officers picked him up and took him to the sheriff's station. (Ibid.) At no time during the drive was the defendant handcuffed. (Ibid.)
At the station, the Leonard defendant was fingerprinted and taken to an interview room, which was not locked. (Leonard, supra, 40 Cal.4th at pp. 1398, 1401.) "At the beginning of theinterview, [the officer] told defendant he was not under arrest, he did not have to answer any questions, and he was free to leave anytime." (Id. at p. 1398, italics added.) During the interview, the defendant made damaging statements which were used against him at trial. (Id. at pp. 1398-1399.) When the interview ended, the officers drove the defendant back to his apartment. (Id. at p. 1399.)
On appeal, the defendant in Leonard argued that the statements were improperly used against him at trial because he was subject to custodial interrogation and not advised of his Miranda rights. (Leonard, supra, 40 Cal.4th at pp. 1399-1400.) Applying the standards set forth above, the California Supreme Court found the defendant "was not subjected to custodial interrogation" because "a reasonable person in his position would have felt free to leave." (Id. at pp. 1400-1401.)
In the case before us, defendant's questioning closely mirrors the questioning in Leonard. In both cases, officers gave defendants a ride to and from the station; the defendants were not handcuffed, and were placed in an unlocked interview room. In both instances, the defendants were told they were not under arrest, they did not have to answer questions, and they were free to leave at any time. Also, in each case, the defendants declined to speak when first approached and the officers respected those requests.
In Leonard, the California Supreme Court held that under those circumstances, "a reasonable person... would have feltfree to leave" and therefore "was not subject[] to custodial interrogation." (Leonard, supra, 40 Cal.4th at pp. 1400-1401.) Here, because defendant was interviewed under nearly identical circumstances as those in Leonard, defendant was not subject to custodial interrogation and Miranda does not apply. Therefore, the trial court did not err in denying the motion to suppress the July 3 statement.
Defendant, however,...
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