1

Filed 2/20/15 P. v

. Garibo CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). T his opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v.
ANTONIO AYALA G ARIBO, Defendant and Appellant. E059814 (Super.Ct.No. RIF1209513)
OPINION

APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.
Affirmed. Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant
and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall Einhorn, and Parag Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION Defendant Antonio Ayala Garibo moleste d his stepdaughter throughout her2

childhood. A jury convicted defendant of six counts of committ ing lewd and lascivious acts upon a child under 14 years of age

. (Pen. Code, § 288, subd. (a) .) 1 T he trial court
sentenced defendant to 18 years in state pri son: the upper term of eight years on count 1, plus five consecutive two

- year terms on counts 2 through 6. On appeal, defendant argues his Miranda 2 rights were violated during a custodial interrogation. Defendant also contends there is insufficient evide nce of counts 5 and 6 and the sentences on those counts should be stayed. Finally, he claims there was prejudicial instructional error. We reject defendant’s contentions and affirm the judgment.
II
STATEMENT OF FACTS
A. Prior Incidents
Jane Doe was born in September 1987. Between the ages of four or five and

seven years old, Jane Doe liv ed in Anaheim with defendant and her mother and siblings
after defendant married her mother. When Jane Doe was four or five years old,
defendant touched her inappropria tely during a game of hide

- and

- go
- seek. Jane Doe and
defendant were hiding in her bedroom when he touched her genitals 3 over her clothes.

1 All statutory references are to the Penal Code unless stated other wise.

2 Miranda v. Arizona (1966) 384 U.S. 436.

3 Although the term “vagina” is used colloquially, apparently defendant actually touched Jane Doe’s external genitalia, not the vagina which is an internal organ.3

Jane Doe did not know if defendant’s behavior was wrong but she was afraid to tell

anyone. In another incident, whe n Jane Doe was five years old, she was watching television in the living room when defendant asked her to change into a skirt and to sit
next to him on the couch under a blanket. Defendant touched her chest and genitals
under her clothes and told her not to tell anyone

. In anothe r incident, defendant told Jane
Doe to sit on his bed. He displayed his penis and asked her to touch it. She refused and

ran away because she was scared.
W hen Jane Doe was eight or nine years old, she remembered waking up five o r six times in the morning without any clothes on, confused because she had gone to bed wearing her pajamas. One night , she awoke and saw defendant walking out of her room. When Jane Doe was eight years old, defendant also touched her during a car ride

to the store . He forced her to sit on his lap and she steered the car while he touched her genitals over her clothes. She warned defendant to stop or she would tell he r mother

. Defendant responded that Jane Doe ’ s mother would be angry at her

. At the stor e, defendant bought Jane Doe candy and gave her 50 cents to be quiet. Several time s on trips to the store, defendant touched Jane Doe and gave her money or candy. Defendant also touched Jane Doe at the beach when she was between eig ht and 10 years old. W hile pretending to teach her to swim, defendant would grab her crotch over her swimsuit. While she played at the park, defendant would grab her over her clothing

. He once grabbed her crotch while placing her on top of a pony. Defendant also spied on
her wh ile she was showering

.4

Twice when Jane Doe was sick, defendant rubbed Vicks V apo Rub on her chest
underneath her shirt. Jane Doe was afraid to tell anyone because she believed defendant might hurt her mother.
B

. Acts of Lewd and Lascivious Conduct in Perris Jane Doe was 11 or 12 years old (between 1998 and 2000) when the family moved
to Perris in Riverside County. Defendant would call Jane Doe into his room , tell her to
sit next to him on his bed , and stroke her legs. He would caress her hands and tr y to
touch her genitals over her clothing but she pushed his hand away. Defendant also attempted to grab Jane Doe ’ s breasts, start ing with h er elbows. This happened “ [ m ] ore than six, seven times. ”
Defendant s topped touching Jane Doe when she was 14 after a Child Protective Services (CPS) worker came to the house in June 2002 on an other matter

— although Jane
Doe was afraid to talk to the CPS worker

. 4 Jane Doe knew defendant had a gun, he had repeatedly told her that there was nothing wrong with the touchin g, and she thought no one would believe her.
C. Post

- Molestation Events
In late 2003, when Jane Doe was 16 and pregnant, she left home with her boyfriend . S he still visited defendant but she would not leave her children alone with
him

. S he blocked out t he events from her childhood. She borrowed money from

4 A CPS worker interviewed Jane Doe in June 2002, when she was 14 years old. to determine whether she suffered from any child abuse. Jane Doe denied that anyone had touched her “ private parts. ”5

defendant and she and her husband rented a trailer to live in from defendant but, when they could not pay, defendant asked her to leave. She did not fabricate allegations against defendant for revenge

. I n 2012, when she was 25, Jane Doe began having sexual problems with her
husband . She began to remember past events and was hospital ized with panic attacks

. During a medical history examination taken at a mental health clinic, she revealed her past abu se. Three months after the panic attack and hospital visit, she first told a family
member about the molestation s
. In November 2012, Investigator Glenn Johnson of the Riverside County Sheriff ’ s Department interviewed J ane Doe who, was crying, upset, and “ in shambles. ” Jane Doe
recited a basic summary of what happened with defendant

. She told Johnson that , after she moved to Perris, the “ touching continued as it had in Anaheim. ” Johnson interviewed defendant who finally admitted touching Jane Doe on her chest and genitals between three and six times and wrote a letter of apology to her.
III
MIRANDA VIOLATION
Defendant contends the trial court erred by denying his motion to suppress his
statements and the letter he wrote during the course of th e custodial interview because the questioning continued after he purportedly invoked his right to counsel. A. The Interrogation During the interrogation, Investigator Johnson advised defendant of his Miranda rights and defendant verbally confirmed he understood the r ights. Subsequently,6

defendant mentioned a lawyer three times. When defendant first used the word “lawyer,” Johnson asked defendant if he wanted a lawyer and defendant did not respond directly. Instead, he denied touching Jane Doe and the interview cont inued. Then defendant asked
Johnson how long it would take to get a lawyer. Johnson told him, “ A couple days. ” Later, defendant made the statement, “ talk to a lawyer I guess .” Both times defendant continued talking to Johnson.
Defendant admitted that h e touched and rubbed Jane Doe ’ s genitals three to six
times and specifically admitted the incident involv ing a pony in Anaheim

. T he three to
six incidents occurred in Perris, when Jane Doe was a bout eight years old . Defendant
also admitted to touching Ja ne Doe on the chest when she was in high school. He physically demonstrated how he would rub Jane Doe. Defendant said he did not touch
Jane Doe more frequently because of his wife. During the interview , defendant wrote a letter of apology to Jane Doe , st ating,

“ ‘ Look [Jane Doe], forgive me for touching you. I hope this helps a lot. I have nothing else to say. ’ ” When defendant finally asked unambiguously for a lawyer , Investigator
Johnson ended the interview.
B. Relevant Law
After Miranda warnings are given, the interrogation must cease if the suspect
indicates he wishes to remain silent or states he wants an attorney . T he state bears the
burden by a preponderance of the evidence to show that a suspect’s waiver was knowing, intelligent, and voluntary u nder the totality of the circumstances surrounding the interrogation. ( People v. Williams (2010) 49 Cal.4th 405, 425 ; People v. Cruz (2008) 447

Ca1.4th 636, 668 .) A fter a knowing and voluntary waiver, an interrogation may continue unless the suspect clear ly requests an attorney. ( Williams, at p. 427 .) In the absence of an unambiguous or unequivocal invocation, the interrogating
officer ha s no obligation to end the interrogation or ask the suspect any clarifying questions. ( Berghuis v. Thompkins (2010) 56 0 U.S. 370, 381 ; People v. Martinez (2010) 47 Cal.4th 911, 948.) However, the interrogator may try to clarify the suspect ’ s intention. ( People v. Williams, supra , 49 Cal.4th at p. 428.) Ambiguity is determined objective ly; statements deemed ambiguous ar e those that “ a reasonable officer in light of the circumstances would have understood [to signify] only that the suspect might be invoking ” hi s Miranda rights. ( Davis v. United States (1994) 512 U.S. 452, 459; see Williams, at p. 428.) In considering a Miranda violation on appeal , this c ourt independently reviews the trial court ’ s legal determination and defers to its factual findings if substantial evidence supports them. ( Williams, at p. 425.)
C. The Pretrial Motion Defendant made a pretrial motion t o exclude all statements he made to Investigator Johnson during the entire interview

— and the letter he wrote

— based on a purported Miranda violation. The trial court

— and this court

— review ed the actual DVD in its entirety, focusing on the several mentions of an attorney. The trial court found (1)
defendant was in custody; (2) defendant received a Miranda admonishment and he acknowledged the warning; (3) defendant understood his Miranda rights; (4) defendant eventually invoked his Miranda rights ; (5) but , u ntil defendant unequivocally invoked his8

rights, there was ambiguity about whether defendant had invoked his Miranda rights and the investigator was seeking clarification.
As to the first attempted invocation, the trial court found th e invocation was ambig uous because it was mostly unintelligible and , when the investigator sought clarification, defendant proceeded with the conversation voluntarily. T he second
invocation was unclear based on unintelligible sections and because defendant qualified his suppos ed invocation. W hen Investigator Johnson tried to clarify, defendant did not further invoke his right to counsel and did not remain silent. Therefore, the trial court
denied the motion to exclude defendant’s statements and the written letter.
Based on o ur review of the DVD and the transcript, we agree defendant did not
invoke his Miranda rights when defendant initially mentioned a lawyer to Investigator
Johnson . His statement was fragmented and c onfusing, and , when Johnson tried to clarify his meaning, defendant continue d talk ing to Johnson. A suspect must unambiguously request counsel and “ he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand
the statement to be a request for an attorney. ” ( Davis v. United States, supra , 512 U.S. at

p p . 459 , 461; People v. Gonzalez (2005) 34 Cal.4th 1111, 1127.) “ Under the Davis [ v. United States ] standard, it is not enough that a suspect makes a reference to an attorney

‘ that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel. ’” ( People v. Nelson (20 12) 53 Ca1.4th 367, 376, quoting Davis v. United States, supra , 512 U.S. at p. 459.)9

Defendant’s second mention of an attorney was also unintelligible, c onfusing and equivocal. After asking how long it would take to speak to a lawyer, defendant talked for a long time and made a phone call to his sister before making an incomprehensible

statement: “ No, (unintelligible)

– you

– (unintelligible) talk to a lawyer I guess. ” While
defendant may have meant this statement as a request for counsel, it cannot be said that this was the only reasonable understanding that an officer could have had. ( People v.
Baco n (2010) 50 Cal. 4th 1082, 1105

- 1007 [use of qualifying term “ probably ” rendered statement ambiguous]; see Davis v. United States, supra , 512 U.S. at p. 459 .)
Defendant’s statement was not an unambiguous invocation of his rights. When Investigator Johnson asked a clarifying question to determine whether defendant wanted

to stop the interview , defendant responded, “ Like I said, I don ’ t and

– they ’ re gonna (unintelligible) right away. I love my wife and kids. ” Defendant did not clearly ask for a lawyer.
Defe ndant argues that the Ninth Circuit ’ s decision in Alvarez v. Gomez (9th Cir. 1999) 185 F.3d 995 is instructive because the defendant in that case requested to speak to an attorney three times. T his c ourt is not bound by holdings of lower federal courts. (See People v. Romero (2006) 140 Cal.App.4th 15, 19; People v. Burnett (2003) 110 Cal.App.4th 868, 882.) Furthermore, in Alvarez , the defendant request ed “ an attorney as soon as he was asked whether he wished to waive his right to remain silent and submit to questioning. ” ( People v. Williams, supra , 49 Cal.4th at p. 430.) Not so here. The California Supreme Court distinguished the Alvarez holding in situations
where defendant ha s first waived his Miranda rights and then fail s to assert his rights10

unambig uously in the subsequent interrogation. ( People v. Williams, supra , 49 Cal.4th at pp. 430

- 432.) T he Alvarez “ court explained that it was evident the police were not merely seeking clarification but sought to undermine the defendant ’ s intent to assert his rights. ” ( Id. at p. 430.) Thus, defendant’s reliance on Alvarez is misplaced

. Here, after
defendant was fully advised and waived his Miranda rights, he made ambiguous and
unclear references to an attorney. The officer properly followed up with clarif y ing questions, and defendant’s answers indicated he was not invoking his right to counsel

. Finally, defendant’s argument that the i nvestigator misled him by stating that it
would take “ a couple days ” to talk to a lawyer is meritless because it was a truthf ul

answer. At trial, Johnson explained defendant would be appointed an attorney in a couple of days when he was arraigned . Johnson did not mislead defendant. ( People v.
Smith (2007) 40 Ca l .4th 483, 503 ; People v. Enraca (2012) 53 Cal.4th 735, 756 .)
In sum mary , because defendant’s statements were unclear and ambiguous, it was reasonable for Investigator Johnson to attempt to clarify defendant’s intention and to
continue the interview. There was no Fifth Amendment violation, and the trial court properly admitted defendant’s statements and the letter he wrote during the interview.
IV
COUNTS 5 AND 6
Jane Doe testified that defendant had touched her in Perris more than six or seven times and, on cross

- examination, she described four incidents in detail. De fendant admitted touching Jane as many as six times when they lived in Perris although he misstated her age as being eight years old. Defendant argues there is insufficient11

evidence to support convictions on counts 5 and 6. Bas ed on Jane Doe ’ s testimony at trial, and defendant’s corroborating admission, substantial evidence supported a
conviction for six separate incidents of inappropriate touching

. On cross

- examination, Jane Doe testified one incident occurred when defendant
touched her leg and genitals while they sat together

. The second incident involved
defendant touching her when she and defendant were on the way to the s tore. A third time, defendant again sat next to Jane Doe and touched her leg and genitals. During a fourth incident, defendant to uched her in the backyard. J ane Doe could not recall

“ exactly where or when ” about further incidents but she testified generally that defendant
touched her six times in Perris and defendant testified to the same facts

. We apply a deferential standard of r eview, determining “ whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. ” ( Jackson v. Virginia (1979) 443 U.S. 307, 3 19; People v. Johnson (1980) 26 Cal.3d 557, 575

- 578.) I f the evidence presented below is subject to differing inferences, the reviewing court must
assume that the trier of fact resolved all conflicting inferences in favor of the prosecution. ( Jackson , at p. 326.) A reviewing court does not mak e its own subjective determination of guilt. ( Id. at p. 321, fn. 13.)
In People v. Jones (1990) 51 Cal.3d 294, 313 , the California Supreme Court held that generic testimony is sufficiently substantial from an evid entiary standpoint to support
a conviction when the defendant is accused of repeatedly engaging in nonspecific lewd
and lascivious conduct which cannot be clearly differentiated. ( Id. at p. 316 , citing12

People v. Moore (1989) 211 Cal.App.3d 1400 .) T he vic tim must be able to describe the

acts com mi tted with sufficient specificity and to differentiate between the various types of proscribed conduct , such as lewd conduct, intercourse, oral copulation or sodomy.
T he victim must also be able to describe the nu mber of acts committed

— such as “once a
week” or “whenever we drove to the store”

— as well as a general time period based on age or location, such as 12 or 13 years old and living in Perris. Additional details are useful but not essential because of the di fficulties inherent in proving c hild molestation

cases involv ing young victims and multiple repetitive acts. ( Jones, at p. 305.)
C ollectively, the evidence here sufficient ly establish es that defendant committed the crimes charged in counts 5 and 6. A def endant may be constitutionally convicted of
child molestation based on “ generic evidence describing (1) the kind of acts committed, (2) the number of acts committed with sufficient certainty to support the alleged counts, and (3) the general time period in which the acts occurred

. ” ( People v. Fernandez (2013) 216 Cal.App.4th 540, 557 .) In “ child molestation cases, as long as the victim specifies the type of conduct involved, its frequency, and that the conduct occurred during the limitation period, nothin g more is required to establish the substantiality of the victim ’ s testimony

. ” ( People v. Matute (2002) 103 Cal.App.4th 1437, 1446

. ) In this case, there was evidence from both the victim and defendant that he touched her lewdly at least six times ( or mor e) in Perris when she was younger than 14 years old. The number of times defendant admitted to touching Jane Doe, corroborated
her testimony that he touched her inappropriately six to seven times in Perris . V iewing
the entire record in the light most fav orable to the prosecution, and drawing all13

reasonable inferences in support of the conviction, substantial evidence supports the six convictions. For that reason, we do not need to consider defendant’s additional arguments about section 654. ( People v. J ones (2002) 103 Cal.App.4th 1139, 1143.)
V
JURY INSTRUCTIONS Whether a jury instruction correctly states the law is reviewed under the de novo
standard of review. ( People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) Defendant
must demonstrate it is reaso nably likely that the jury understood the instruction in a

m anner that violated his constitutional rights, and that it is reasonably probable a more
favorable result would have been obtained at trial absent the error. ( People v. Santana (2013) 56 Cal.4th 999, 1012 ; People v. Smithey (1999) 20 Cal.4th 936, 963 .) Furthermore, “‘ [i]nstructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such an interpretation. ’ [Citation.] ” ( Ramos, at p. 1088.)
Defendant asserts the jury instructions were misleading and ambiguous and allowed the jury to convict him of crimes that occurred in Orange County, which were only admitted under Evidence Code section 1108. The jury instructions as a w hole , however, clarified that the c rimes defendant was charged with occurred in Riverside County . The Orange County evidence was only presented to help the jury determine if the crimes in Riverside County actually occurred.
The Anaheim incidents were use d as evidence of prior sexual offenses under
Evidence Code section 1108. T he amended i nformation charged defendant with six14

counts of violating s ection 288, subdivision (a), “ in the County of Riverside, ” from the years 19 9 8 to 2002. The court agreed the Orange County offenses were to be considered
under Evidence Code section 1108. Defense counsel requested a special instruction that read: “ Except as 1108 evidence, you may not use any of the incidents that occurred in Orange County as incidents occurring in Riverside County for convictions in C ounts 1 through 6. The court denied the request, finding the information requested in the special instruction was covered by the other instructions, specifically CALCRIM Nos. 1191 [Uncharged Sex Acts of Defendant] a nd 303 [Limited Purpose Evidence]. Ultimately, the jury received a unanimity instruction (CALCRM No. 3501) and other pertinent instructions:

“ It is alleged that the crimes charged in Riverside County occurred on or about September 5, 1995, through Septembe r 4, 2001. The People are not required to prove
that the crime took place exactly on that day, but only that it happened reasonably close to that day. ” (CAL CRIM No. 207 [On or About Date].)

“ During the trial, certain evidence regarding allegations in Ora nge County [ w as] admitted for a limited purpose. You may consider that evidence only for that purpose
and for no other. ” ( CALCRIM No. 303 ) [Limited Purpose Evidence]

“ The People presented evidence that the defendant committed the crimes of 288(a)
and 64 7.6 that were not charged in this case from Orange County. These crimes are
defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact15

committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact
is tru e.

“ If the People have not met this burden of proof, you must disregard this evidence entirely.

“ If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was dispos ed or
inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the [section] 288(a), lewd or lascivious acts on a child under 14, as charged here. If you conclude that the defenda nt committed
the uncharged offenses, that conclusion is only one factor to consider along with all the
other evidence. It is not sufficient by itself to prove that the defendant is guilty of counts
1

- 6, lewd or lascivious acts on a child under 14. The Pe ople must still prove each charge beyond a reasonable doubt.

“ Do not consider this evidence for any other purpose. ” ( CALCRIM No. 1191 [Uncharged Sex Acts of Defendant].) ” During closing argument, the prosecutor repeatedly reminded the jur y that the six
ch arged offenses occurred in Perris, and that the Orange County acts could only be used
to determine whether the acts in Riverside County occurred, but could not satisfy the elements needed for a guilty verdict. Defense counsel also stressed that the six ch arged
offenses must have occurred in Riverside County

.16

Defendant contends the jury instructions incorrectly allowed the jury to find that the alleged crimes could have occurred in 1995 and, therefore, the jury could have found
defendant guilty based on cr imes that occurred in Orange County and admitted as prior
crime evidence . However, th e jury instructions were not ambiguous and correctly charged the jury with the task of determining whether defendant committed six acts of
lewd and lascivious conduct in Riverside County. The evidence presented at trial was inconsistent as to when Jane Doe’s family
moved to Perris. Jane Doe said they moved when she was 11 or 12 years old , either
1998 , 1999 , or 2000

. Defendant admitted touching Jane Doe in Perris when he thought she was eight years old, which would have been in 1995 or 1996. T herefore, t he trial court properly instructed the jury that the incidents must have occurred sometime
between S eptembe r 1995 and September 2001 , when Jane Doe turned 14, based on the
state of the evidence and the statements made by both Jane Doe and defendant

. CALCRIM No. 207 explicitly s t ated that that the crimes were “ charged in Riverside County , ” making it clear to the jury that the inappropriate touching had to have happened in Ri verside County. Additionally, the remaining instructions clarified that all charged crimes must have occurred in Riverside County and that the evidence of crimes in Orange County was only presented for a limited purpose.
Further more , counsels ’ arguments m ust be considered in assessing whether any ambiguity caused the jury to misunderstand the instructions. ( People v. Young (2005) 34
Cal.4th 1149, 1202.) T he prosecutor reiterated to the jury that the charged offenses17

occurred in Perris and defendant could not be convicted for events that occurred in
Anaheim

. In sum, the jury instructions as a whole were not ambiguous, and there is no reasonable likelihood that the jury understood the instructions in a manner that violated
defendant’s constitutional rights. ( People v. Ayala (2000) 24 Cal.4th 243, 289.) The
instructions and counsels ’ arguments made it clear that the jury could only convict
defendant based on conduct that occurred in Riverside County.
VI
DISPOSITION
There was no Miranda or instructional err or. Counts 5 and 6 are supported by sufficient evidence. We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. We concur:
KING Acting P. J.

MILLER J.