Filed 10/19/20 P. v. Vargas CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS JUAQUIN SANCHEZ 

VARGAS,

Defendant and Appellant.

 B301513

 (Los Angeles County 

 Super. Ct. No. BA471048)

APPEAL from the judgment of the Superior Court of Los 

Angeles County. Frederick N. Wapner, Judge. Affirmed. 

Benjamin Owens, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Acting 

Senior Assistant Deputy Attorney General, Roberta L. Davis and 

William H. Shin, Deputy Attorneys General, for Plaintiff and 

Respondent.

* * * * * * * * * *
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Defendant and appellant Carlos Juaquin Sanchez Vargas 

was convicted of multiple sexual offenses with a child under 

10 years of age and sentenced to prison for a term of 15 years to 

life, plus 12 years. 

Defendant contends his trial counsel was ineffective for 

failing to move for the suppression of his pretrial statement to 

law enforcement. He further argues the trial court 

misunderstood its sentencing discretion and that a new 

sentencing hearing is warranted.

We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with two counts of sexual 

penetration with a child 10 years old or younger (Pen. Code, 

§ 288.7, subd. (b); counts 1 & 2) and three counts of committing a 

lewd act upon a child (§ 288, subd. (a); counts 3, 4 & 5). 

Defendant’s victim, S.S., testified at trial that he assaulted 

her numerous times at her family’s church. Over a period of 

months (S.S. was eight and nine years old at the time), S.S.

would see defendant on the church grounds. She and her family 

were at the church three to four days each week. Oftentimes, 

defendant would approach her when she was outside and away 

from other children or adults. Other times, he would sit down 

next to her while they were in the church or the cafeteria. 

Defendant first touched her private parts over her clothes, 

but the next time he pushed his hand under her clothes. 

Defendant grabbed her hand so she could not run away from him. 

She would tell him to stop but he did not listen to her. S.S. did 

not tell anyone what was happening because defendant told her 

“he was gonna do something that was bad to [her].” Defendant 

also touched her buttocks and her chest, both over and under her 
3

clothes. She would try to push his hands away but he would not 

stop. 

S.S. said one day defendant approached her when she was 

sitting outside and kissed her. He pushed his tongue into her 

mouth. “He didn’t stop until he wanted to.” 

More than once, defendant inserted his finger into her 

private parts. S.S. tried to get away from him but was unable to 

do so. She eventually told her parents and it was reported to law 

enforcement. 

S.S. identified herself in the videotaped recording of her 

forensic interview that took place in September 2018 shortly after 

the assaults were reported to police. The videotape was played 

for the jury. 

During the interview, S.S. explained the assaults in a 

manner substantially consistent with her trial testimony, but 

with some additional detail. She said that defendant grabbed her 

“so hard” the time he kissed her outside the church that she 

wanted to scream but was too scared. S.S. said when he touched 

her buttocks or her chest, he would squeeze her with his hand. 

He also told her to wear a dress to church so he could touch her 

privates. When defendant put his fingers inside her, it hurt. 

Defendant told S.S. it felt good. Defendant also tried to get S.S. 

to touch his private parts but she always pulled her hand back 

and resisted. 

Detective Jason Kim testified regarding his videotaped 

interview with defendant. Detective Kim explained that 

defendant initially denied touching S.S., but eventually admitted 

he had touched her, but only with his hands. Defendant also 

admitted that he digitally penetrated S.S. Excerpts of the 

recorded interview were played for the jury. 
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Defendant did not testify and did not present any 

witnesses. 

The jury found defendant guilty as charged. The court 

sentenced defendant to prison for an aggregate term of 15 years 

to life plus 12 years, calculated as follows: 15 years to life on 

count 1, the base term, a concurrent term of 15 years to life on 

count 2, a consecutive upper term of eight years on count 3, and 

consecutive two-year terms on each of counts 4 and 5 (one-third 

the midterm). The court imposed various fines and fees and 

awarded defendant 449 days of presentence custody credits. 

This appeal followed.

DISCUSSION

1. Defendant Has Not Shown Ineffective Assistance of 

Trial Counsel 

Defendant contends his appointed trial counsel was 

ineffective and violated his constitutional rights by failing to seek 

the suppression of his pretrial confession to law enforcement. We 

are not persuaded. 

Defendant’s burden to establish ineffective assistance of 

trial counsel on direct appeal is stringent. He “must show both 

that trial counsel failed to act in a manner to be expected of 

reasonably competent attorneys acting as diligent advocates, and 

that it is reasonably probable a more favorable determination 

would have resulted in the absence of counsel’s failings.” (People 

v. Cudjo (1993) 6 Cal.4th 585, 623, citing Strickland v. 

Washington (1984) 466 U.S. 668, 687-696.) “ ‘ “Reviewing courts 

will reverse convictions [on direct appeal] on the ground of 

inadequate counsel only if the record on appeal affirmatively 

discloses that counsel had no rational tactical purpose for [his or 
5

her] act or omission.” ’ ” (People v. Lucas (1995) 12 Cal.4th 415, 

437.) 

Defendant argues any reasonable attorney would have 

objected to the admission of the pretrial statement because 

Detective Kim minimized the significance of the warnings given 

pursuant to Miranda v. Arizona (1966) 384 U.S. 436 and because 

he used improper psychological coercion appealing to defendant’s

religious beliefs. Defendant argues the failure to exclude his

statement was prejudicial because he would have likely received 

a more favorable outcome at trial if the jury had only the victim’s 

testimony standing alone to consider. 

Defendant has not shown either element of an ineffective 

assistance claim. In arguing that a reasonable attorney would 

have necessarily moved to exclude his statement, defendant 

mischaracterizes Detective Kim’s conduct during the interview.

Here, Detective Kim, at the start of the interview, took off 

defendant’s handcuffs and brought him a glass of water. 

Defendant volunteered he did not like to drink really cold water 

ever since an accident he had years earlier that resulted in the 

loss of a kidney. The two spoke briefly about that experience. 

Detective Kim then said that before “we go on talking,” “I . . . 

have to read you some questions really fast, and, and after that, 

we’ll go on with our conversation, okay?” Detective Kim 

explained they were statements that have to be read to all the 

people they interview. Defendant responded, “of course.” 

Detective Kim advised defendant he needed an audible 

response to each question and then clearly read each part of the 

standard Miranda warnings, obtaining a separate “yes” response 

from defendant as to whether he understood each right, including 

the rights to remain silent and to have an appointed lawyer 
6

present. At the conclusion of the Miranda warnings, Detective 

Kim asked if defendant was willing to talk about what led to his 

arrest and defendant said, “yes.” 

There was nothing improper about the Miranda warnings

nor did the brief initial conversation, initiated by defendant, 

trivialize their importance. It is not improper for law 

enforcement to engage in “small talk” or try to build rapport with 

a suspect with neutral background questions. (See, e.g., People v. 

McCurdy (2014) 59 Cal.4th 1063, 1087 [initial questions 

attempting “to establish a rapport” with the defendant do not 

raise the specter of a constitutional violation]; People v. Gamache

(2010) 48 Cal.4th 347, 388 [“small talk” and general, neutral 

inquiries regarding the defendant’s military experience did not 

amount to interrogation designed to elicit an incriminating 

response].) 

Detective Kim’s statement that the advisements were 

something that had to be read to everyone was not a 

misrepresentation and was similar to the statement found 

unoffensive in People v. Musselwhite (1998) 17 Cal.4th 1216, 1237

(Musselwhite). There, the officer spoke with the defendant briefly 

and then preceded his recitation of the Miranda warnings with 

the following statement, “ ‘[w]ell, we don’t know what you know 

and what you don’t know and so, what we’d like to do is just go 

ahead and advise you of your rights before we even get started

and that way, that there’s no problem with any of it. Is that 

alright with you?’ ” (Ibid.) Defendant’s waiver was properly 

obtained. 

Further, defendant was not subjected to psychological 

coercion. “In evaluating a claim of psychological coercion, the 

‘question posed . . . is whether the influences brought to bear 
7

upon the accused were “such as to overbear petitioner’s will to 

resist and bring about confessions not freely self-determined.” ’ ” 

(People v. Kelly (1990) 51 Cal.3d 931, 952.) In this vein, “the 

tactic of exploiting a suspect’s religious anxieties has been justly 

condemned.” (Id. at p. 953.) 

Here, there were frequent references to God and spiritual 

themes during the initial part of the interview, many of which 

were initiated by defendant. Detective Kim sometimes

elaborated on the religious themes and told defendant he too was 

a Christian. Some of the comments related to defendant staying 

on the church grounds and seeking guidance from the pastor 

there (subjects defendant raised with the detective), and to the 

fact the crimes were committed at the church. 

Significantly, defendant did not make any admissions 

during this part of the interview. He spoke generally about men 

having “temptations” but said he did not “touch that girl.” As the 

interview continued, Detective Kim reiterated “the most 

important thing” was for defendant to tell the truth. “ ‘[M]ere 

advice or exhortation by the police that it would be better for the 

accused to tell the truth when unaccompanied by either a threat 

or a promise does not render a subsequent confession 

involuntary.’ ” (People v. Holloway (2004) 33 Cal.4th 96, 115; see 

also People v. Davis (2009) 46 Cal.4th 539, 600 [officer’s 

exhortation to the defendant to “ ‘get it all out in the open’ ” and 

to get everything off his chest did not render subsequent 

confession involuntary]; & People v. Carrington (2009) 47 Cal.4th 

145, 170-172 [officer may extoll the psychological or moral 

benefits of telling the truth].) 

Detective Kim eventually used a ruse, telling defendant, 

falsely, that tests had been “positive” and showed defendant had 
8

touched S.S.’s private parts. Detective Kim confirmed they were 

not talking about rape or defendant having used his penis, only 

that he had touched S.S. with his hands. It was during this 

discussion that defendant admitted he had touched S.S. with his 

hand. Defendant said he had spoken to “Brother Tony” at the 

church and told him he needed to leave because S.S. was “very 

playful” and “bugging me a lot.” Defendant eventually admitted 

he inserted his finger into her private parts. 

Looking at the interview in its entirety, we are satisfied 

there was no psychological coercion that motivated defendant’s 

admissions. Rather, it was the ruse about the positive forensic 

testing that likely motivated defendant to choose to explain what 

happened. (People v. Farnam (2002) 28 Cal.4th 107, 182 [Lies 

told by law enforcement as interview tactic not per se improper 

and do not automatically render any subsequent statement

involuntary]; accord, Musselwhite, supra, 17 Cal.4th at p. 1240.) 

More importantly, defendant has not shown prejudice. The 

victim’s testimony in this case was compelling and powerful, both 

her live testimony and the videotaped forensic interview. The 

consistency in her statements, along with the additional details 

she provided during the forensic interview, bolstered her 

credibility. Defendant’s statement only included generalized 

admissions to some of the assaultive behavior. It is not 

reasonably probable the jury would have disregarded S.S.’s 

testimony had defendant’s statement been excluded. Defendant 

has not shown it was reasonably probable he would have 

obtained a more favorable outcome if his counsel had successfully 

objected to the admission of his statement. 
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2. The Record Does Not Support a Finding the Trial 

Court Misunderstood Its Sentencing Discretion 

Defendant argues that if we are not inclined to reverse for a 

new trial, he is entitled to a new sentencing hearing because the 

trial court did not understand it had the discretion to run the 

determinate terms concurrent with the indeterminate terms. 

The contention lacks merit. 

“It is a basic presumption indulged in by reviewing courts 

that the trial court is presumed to have known and applied the 

correct statutory and case law in the exercise of its official 

duties.” (People v. Mack (1986) 178 Cal.App.3d 1026, 1032; see 

also People v. Moran (1970) 1 Cal.3d 755, 762 [presumption that 

official duty has been regularly performed].) 

Here, the parties’ sentencing memoranda focused on 

counts 1 and 2, the indeterminate counts. Defendant focused 

almost exclusively on arguing for both indeterminate counts to be 

run concurrently, which the court ultimately chose to do. 

Similarly, the prosecution focused on the indeterminate terms 

but also asked the court to exercise its discretion to impose 

consecutive sentences on the determinate counts. 

At the sentencing hearing, the court clearly explained its 

sentencing choices, saying it was imposing “15 years to life” on 

count 1 “plus the 12 years on the last three counts.” The court 

then stated it was imposing a concurrent 15-years-to-life term on 

count 2 because the court believed an aggregate term of 27 years 

was fair and “appropriate” and that 30 years to life on just the 

first two counts would be “out of proportion.” The court then 

stated its reasoning for imposing the high term of eight years on 

count 3, including that defendant was on probation at the time 

the crimes were committed and he attempted to blame the minor 
10

victim for his conduct. The court imposed two-year terms (onethird the midterm) on each of counts 4 and 5. The court summed 

up by reciting the “total sentence on counts 3, 4 and 5 is 12 years 

in the state prison. That is to be served before the 15 years to life 

on counts 1 and 2.” 

“Where, as here, the trial court imposes an indeterminate 

life sentence and a determinate sentence, it has discretion to 

decide whether the sentences shall be served concurrently or 

consecutively.” (People v. Galvez (2011) 195 Cal.App.4th 1253, 

1264.) In arguing that the trial court was unaware of this basic 

aspect of its sentencing discretion, defendant points to the 

following passage at the conclusion of the sentencing hearing, 

during a discussion of various fines. The court said: “[t]he 

sentences in counts 3, 4, and 5, by operation of law, are 

consecutive to counts 1 and 2 because they have—they’re

determinate sentences to be served before the indeterminate 

sentence.” The court then proceeded to advise defendant of the 

requirement that he register as a sex offender. Defendant’s 

entire argument hinges on this stray reference to “by operation of 

law.” 

The trial judge is one of the most experienced judges sitting 

in the downtown Los Angeles central criminal court. Considering 

the entirety of the court’s thorough explanation of its sentencing 

choices, we find defendant’s reliance on this one errant comment 

is without merit. (See, e.g., People v. DeJesus (1995) 38

Cal.App.4th 1, 30 [trial court’s statement “about imposing the 

term required by law” was not indicative of a failure to appreciate 

its sentencing discretion].)
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DISPOSITION

The judgment of conviction is affirmed. 

GRIMES, J.

WE CONCUR:

BIGELOW, P. J. 

STRATTON, J.