1 Filed 1/29/14 P. v. Rios CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
JOSE LUIS RIOS,
Defendant and Appellant. 2d Crim. No. B245665 (Super. Ct. No . 2012001531) (Ventura County)

Jose Luis Rios appeals his convicti on, by jury, of sexua l penetration by a foreign object of a person under 16 y ears of age (Pen. Code, § 289, subd. (i)) 1 , and one misdemeanor count of sexual battery. (§ 243.4, subd. (e)(1).) The trial court sentenced appellant to prison for the middl e term of two years for the section 289
violation and a concurrent term of 180 days for the misdemeanor conviction. Appellant contends the trial court erred when it failed to hold a hearing on his motion, pursuant to Evidence Code section 782, to introduce evidence that the 15-year old complaining witness had not yet disclosed her pregnancy to her parents when she accused appellant of these offenses. He furt her contends the trial court erred when it instructed the jury in te rms of CALCRIM No. 361. Finally, appellant contends

1 All statutory references are to the Penal Code unless otherwise stated.2 statements he made to police before he was advised of his Miranda 2 rights should have
been excluded from evidence. We affirm.
Facts In January 2012, E.R. was 15 years ol d. Her parents were separated. She spent every other weekend with her father, Albert, who lived with his own parents in Oxnard. Appellant, who is Albert's half-b rother, lived in the same house. E.R. and appellant did not know each other well and had never spent much time together. Late one night, E.R. a nd her sister were in the living room, watching a TV movie with appellant. E.R. was lying on an air mattress with appellant. She fell asleep. She woke up at about 5:30 a.m., because she felt appellant's hand inside her shorts. He was moving his finger inside he r vagina, in a circular motion. Appellant also touched her breast, pulle d her leg onto his stomach a nd kissed her knee. He did not seem to be asleep. E.R. moved off the air mattress onto the floor and wrapped herself tightly in her blanket. About 10 minutes later, appellant complained that he
was cold and asked E.R. to share her blanke t with him. She did not respond. E.R. stayed awake, on the floor, until others in the house woke up. E.R. stayed close to her father that day but didn't tell him about what had happened. She disclosed the incident to her boyfriend, Justin, during an evening telephone call. He encouraged her to tell he r father. E.R. did so after the call with Justin ended. The next day, E.R.'s father brought her to the Ox nard police station to report the crime. E.R. made a pretext call to appellant. When she told appellant that
she did not understand what ha d happened during the incident, he replied, "I'm sorry. [] I didn't know what the hell was going on through my head. I didn't mean to do anything like that." E.R. said that she di d not understand why ap pellant put his hand down her pants. He said that he did not remember doing that, but if he did, he was "truly deeply so rry." Throughout the call, appellant claimed he did not remember doing anything to E.R., but he also apologized to her several times. E.R. told appellant

2 Miranda v. Arizona (1966) 384 U.S. 444 ( Miranda ).3 that what had happene d was embarrassing. He replied, "I know it is." Although he continued to say he did no t recall doing anything , he told E.R. he would not do it again. Appellant eventually ended the call, saying that he had to get back to work. A few days later, two detectives from the Oxnard Police Department, Juanita Suarez and Erica Escalante, contacted appellant at his place of work. He agreed to drive himsel f to the police station for an inte rview. Once there, appellant
went into an interview room with the detectives. They left the door open and told appellant that he was free to leave at any time, that he was not under arrest and that he
could choose whether to answer any of their questions. During their 90 minute video-recorded interview, appellant denied touching E.R. He said he to ld E.R. that he did not remember touching her because he was caught off guard by her accusation. His family thought he ha d touched her, but he hadn't. Appellant said E.R. was lying, bu t he did not know why she would lie about the incident. Appellant also said he believed E.R. was attracted to him. One of the detectives told appellant that his family already thought he had touched E.R., so it would be best for him if he was able to pick himself up and move forward. Appellant asked how he could do that. The detectiv e said they already
knew he made the mistake and touched E.R. E.R. felt better after she talked about what happened; the det ective suggested that appellant wo uld also feel better if he did the same. Appellant then said that he was asleep on the air mattre ss with E.R. When he woke up, he had his hand was in her pants. He realized what he had done and pulled away from her. Appellant denied touchi ng E.R.'s vagina or breast. He claimed that he was "grossed out" by what happened and did not kn ow how his hand got inside her pants. The detective asked appellant to write a letter of apology to E.R. He agreed to do so. As she left the room to get him pa per for the letter, she asked appellant if he wanted the door open or cl osed. He wanted to close the door, so she did. Appellant then wrote his letter to E.R. It stated, "E.R., I am deeply sorry for what4 took pla[c]e. I never meant to do those thi ngs to you. I don't know what was going on through my head. I won't be able to forgiv e myself for what I've done. I promise I won't do anything like this to anyone. Sorry. " Appellant was placed under arrest after he finished writing the letter. In his testimony at trial, appellant deni ed touching E.R. at all. He said
that he first learned about E. R.'s accusation in a text message from his brother, Albert, telling him to get his belongings out of the house and not come back. He apologized to E.R. in the pretext call because he thought she would stop making accusations against him. He was trying to avoid conflict. Appellant testified that he told the detectives he put his hand down E.R.'s pants because they did not belie ve him when he told them th e truth. He thought he had no other choice but to admit it, even though he had not touc hed E.R. He believed he
had to tell the detective what she wanted to hear and that she would allow him to leave if he admitted touching E.R. When he wrot e the apology letter to E.R., he wrote what
the detectives told him to. Appellant testified that, in his fa mily it was not uncommon for family members, such as nieces and ne phews, to sleep in the same bed as their adult relatives. During his interview with the detectives, however, appellant stated that he thought sleeping in the same bed as E.R. was kind of weird. Appellant also testified that Spanish is his first language and claimed to have been confused by some of the detectives' questions. On cro ss-examination, he stated that he had graduated from high school in California, where his classes we re in English. He did not request an interpreter for the trial because he understood what was happening.
Discussion Evidence of E.R.'s Pregnancy E.R. discovered she was pregnant shortly before the incident with appellant occurred. She had not yet told her parents about the pregnancy. Before trial, appellant's trial counsel filed a motion und er Evidence Code section 782 to admit5 evidence of E.R.'s pregnancy. Counsel argu ed the pregnancy was relevant to E.R.'s
motive the fabricate the assault and was also relevant to test the credibility of other prosecution witnesses on cross examination. Counsel speculated that E.R. may have
fabricated the assault to distract attention from her pregnancy. At a hearing on pretrial motions, de fense counsel informed the court that
she intended to file an affidavit under seal in support of the moti on. The trial court declined to read any sealed document "until I know what statute or case stands for the proposition that I'm able to receive it under s eal . . . . [¶] And if you can provide me with the authority, I'll make su re I read it. If I can consid er it without [the prosecutor] seeing it, I'll consider it." Defense counse l withdrew the motion while she considered
whether to file an affidavit that was not under seal. The next day, E.R.'s boyfriend Ju stin F., testified that E.R. was emotional and upset during their conversation. He said this was the first time she had cried during their relationship. Defense counse l then asked, "Okay. And at this point,
was this before or after she told you that she was pregnant?" In a subsequent argument over the propriety of that question, defense counsel made an offer of proof concerning th e relevance of E.R.'s pregnancy: "If a 15- year-old is pregnant and she doesn't tell her mother she's pregnant and she doesn't want
to tell her mother about this event and she texts her fathe r, she avoids the problem until the problem becomes obvious. The problem becomes obvious within 30 to 40 days. [¶] This distracted the family while she de veloped an idea with [Justin F.] of how to explain to the family that th ey were now going to be pare nts at age 15 and 17, now 16 and 18." Defense counsel argued E.R.'s pre gnancy was also relevant to Justin F.'s credibility. The trial court re jected both arguments. It concluded E.R. 's pregnancy was not relevant because, "The fact that a person is pregnant does not mean it's a motive to commit a lie, to be happy, to have any particular motive."
The trial court also noted that de fense counsel had not filed a motion
under section 782 to admit evidence of the complaining witness' sexual conduct. It6 described counsel's prior motion as "fatally defective" because counsel "didn't file an
affidavit. And the Evidence Co de specifically requires it." Later in the trial, defense counsel renewed her motion to admit evidence of E.R.'s pregnancy, filing an affidavit that was not under seal. Defense counsel contended in her affidavit that the prosecut ion's failure to disclose E.R.'s pregnancy during discovery was a Brady 3 violation. Counsel furthe r argued the pregnancy gave
E.R. a motive to lie about the assault. E. R. was not concerned about maintaining her privacy because she had discussed her pregnanc y on social media sites. The trial court again ruled the pregnancy was irrelevant. Appellant now contends the trial c ourt erred because it did not hold a hearing, outside the presence of the jury, at which counse l would have questioned E.R. concerning her pregnancy, to establish that the evidence was admi ssible and relevant to her credibility. Although we agree the trial court should have permitted counsel to file a sealed affidavit in support of her s ection 782 motion, we conclude the trial court did not prejudicially err when it declined to hold a hearing on the motion. Evidence Code section 782 applies in prosecutions for sex offenses, such as the one at issue here. (Evid. Code, § 782 , subd. (c).) Subdivision (a) of the statute provides that, "if evidence of sexual conduc t of the complaining witness is offered to attack the credibility of th e complaining witness under Section 780, the following procedure shall be followed: [¶] (1) A written motion sh all be made by the defendant to the court and prosecutor stating that th e defense has an offer of proof of the relevancy of evidence of the se xual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness. [¶] (2) The written motion sha ll be accompanied by an affida vit in which the offer of proof shall be stated. The affidavit shall be filed under seal and only unsealed by the court to determine if the offer of proof is sufficient to order a hearing pursuant to paragraph (3). . . . [¶] (3) If the court finds that the offer of proof is sufficient, the

3 Brady v. Maryland (1963) 373 U.S. 83, 87 [10 L.Ed.2d 215].7 court shall order a hearing out of the presence of the jury, if any, and at the hearing allowing the questioning of th e complaining witness regarding the offer of proof made by the defendant. [¶] (4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant . . . is relevant . . . and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant , and the nature of the questions to be permitted. . . ." (Evid. Code, § 782, subd. (a).) As subdivision (a)(2) of the statute makes plain, appellant's trial counsel
was entitled to file a sealed affidavit in support of the motion. The trial court erred
when it refused to review the sealed affidav it. We note, however, that the court stated
it would review the sealed affidavit if trial counsel cited authority for its ability to do
so. Rather than refer the co urt to subdivision (a)(2) of Evidence Code section 782,
counsel withdrew the motion. Counsel could promptly have corrected the trial court's
error had counsel cited the releva nt portion of the statute. The error was, however, harmless because counsel later supported the
motion with an affidavit that was not filed under seal and does not contend on appeal
that additional information wo uld have been included in an offer of proof submitted by
sealed affidavit. As the trial court corr ectly concluded, counsel's affidavit did not demonstrate that evidence of E.R.'s pre gnancy was relevant to her credibility. Evidence Code section 782 requires defense counsel to make a written offer of proof explaining the relevance of the complaini ng witness' sexual conduct to his or her credibility. If the written offe r of proof does not demonstr ate that the evidence would be relevant to credibility, the trial court is not required to hold a he aring on the motion. (Evid. Code, § 782, subd. (a)(2), (3); People v. Rioz (1984) 161 Cal.App.3d 905, 916.) " 'A trial court's ruling on the admissibility of prior sexual conduct will be overturned on appeal only if appellant can show an abuse of discretion.' " ( People v. Bautista (2008) 163 Cal.App.4th 762, 782.) There wa s no abuse here because the trial court8 correctly concluded that defense counsel' s offer of proof was not sufficient to demonstrate that evidence of E.R.'s pre gnancy was relevant to her credibility. Appellant contended E.R.'s pregnanc y gave her a motive to lie to her parents about the sexual assa ult, so they would be dist racted or more sympathetic
toward her when she to ld them about her pregnancy. Li ke the trial court, we are not persuaded. First, defense co unsel's offer of proof never explained why E.R. would go to such extraordinary lengths to generate sympathy from her parents. Second, the fact of E.R.'s pregnancy does not make her description of the assault any more or less believable. Re spondent never claimed that E.R. was too young to know about sexual behavior unl ess she had been abused. (See, e.g., People v. Daggett (1990) 225 Cal.App.3d 751, 757.) As a teenager, E.R. was old enough to have that knowledge, even if she had no personal experience. Her personal sexual experience has no probative value in determining her credibility. Finally, any error in failing to hold an evidentiary hear ing on the motion
was harmless because there is no reasonable probability appellant wo uld have obtained
a more favorable result had the trial court allo wed E.R. to be questioned on this matter. ( People v. Chandler (1997) 56 Cal.App.4th 703, 711.) Given the tenuous link between E.R.'s pregnancy and her credibility, the tr ial court woul d have had discretion to
exclude the evidence on the ground that its probative value was outweighed by its potential for undue prejudice. (Evi d. Code, § 782, subd. (a)(4); People v. Fontana (2012) 49 Cal.4th 351, 370.) Moreover, the evidence against appe llant was strong. E.R. promptly reported the incident to he r boyfriend, her father and the police; appellant admitted touching E. R. during the pretext call and in his interview with the detectives. Under these circumstances, it is not reasonably proba ble appellant would
have obtained a more favorable result had the evidence been pres ented to the jury.
Instructional Error Appellant contends the trial court e rred when it instruct ed the jury, in terms of CALCRIM No. 361 that, "If the defe ndant failed in his testimony to explain9 or deny evidence against him, and if he coul d reasonably be expected to have done so based on what he knew, you may consider hi s failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. [¶ ] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure." According to appellant, the instru ction is not supported by the record because there are no facts, other than E.R.'s motive to lie, that he failed to explain or deny. We disagree. CALCRIM No. 361 is properly give n where the defendant " 'failed to explain or deny any fact of evidence that was within th e scope of relevant crossexamination.' " ( People v. Lamer (2003) 110 Cal.App. 4th 1463, 1469.) A
contradiction between the defe ndant's testimony and that of another witness is not enough to support th e instruction. ( Id. ) In addition, "[i]f a defendant has not been asked an appropriate question calling for e ither an explanation or a denial, the instruction cannot be given, as a matter of law." ( People v. Roehler (1985) 167 Cal.App.3d 353, 392.) The instruction is, however, properly given where there are "logical gaps" in the defendant's testimony ( People v. Redmond (1981) 29 Cal.3d 904, 911), or where "the defendant tenders an explanation which, while superficially accounting for his activities, nevertheless seem s bizarre or implausible . . . ." ( People
v. Mask (1986) 188 Cal.App.3d 450, 455.) The trial court here properly instru cted the jury in terms of CALCRIM
No. 361 because there were several facts he failed plausibly to explain. For example, appellant testified on direct examination th at his cell phone rang during his interview
with Detective Suarez. On cr oss-examination, appellant said he told the detective at the beginning of the interview that his phone had been deactivated because he hadn't paid the bill. The prosecut or asked whether appellant wa s lying when he said his phone was working on the day of the interview. Appellant replied, "No. 'cause I10 remember it rang." Appellant then said he lied about his phone being deactivated and then said he only thought it had been deactivated. Appellant testified on direct exam ination that he falsely confessed because E.R.'s father, Albert R., threatened to harm him fo r touching E.R. Appellant testified he was "not a person who likes to get into conflict. So whenever there is conflict, I would rather take another route and just end it and get it over with." He thought falsely confessing "was going to end the problem." Appellant could not, however, explain how falsely confessing to the assault would prevent Albert R. from harming him or "end the problem" between them. Appellant testified that, when he wrot e the apology letter to E.R., he only
wrote what Detective Suarez told him to. He also testified, however, that Detective Suarez left the room while he wrote the letter. He did not explain how she could dictate the content of the apology letter to him when she was not in the room while he wrote it. In a similar vein, appellant told the prosecutor he would remember having touched E.R.'s vagina or brea sts because those were "big th ings." Then, the prosecutor asked, "So it's your testimony as you sit here today that n one of that, not a single one of those things ever happened. Is that your testimony?" Appella nt replied, "As my knowledge, no." He then said, "I don't remember it happening." Appellant was unable to explain any of these logical gaps and implausible explanations in his testimony. They provide adequate evidentiary support
for the instruction. There was no error.
Miranda Appellant contends the trial court erred when it adm itted into evidence statements he made during hi s interview with the detectives because he was not given
his Miranda 4 warnings before the interview began. We disagree. Appellant was not in custody when he made the statements at is sue; there was no requirement that he be advised of his rights to remain silent and to counsel.

4 Miranda v. Arizona (1966) 384 U.S. 444.11 A person may not, consistent w ith the Fifth Amendment privilege against self-incrimination, be subjected to custodial interrogation by law enforcement unless that person knowingly a nd intelligently waives his or her right to remain silent, to have an attorney present and, if indigent, to have appointed counsel. ( People v.
Storm (2002) 28 Cal.4th 1007, 1021.) These rights attach when the person is in custody, in the sense that "there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." ( California v. Beheler (1983) 463 U.S. 1121, 1125 [7 7 L.Ed.2d 1275].) The question of whether a person is in custody is determined by "the objectiv e circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." ( Stansbury v. California (1994) 511 U.S. 318,323 [128 L.Ed.2d 293].)
We "defer to the trial court's resolution of disputed facts, including the credibility of witnesses, if that resolution is supported by substantial evidence[,]" and independently determine whether the challenged stat ement was obtained in violation of Miranda

. ( People v. Gurule (2002) 28 Cal.4th 557, 601.) Here, the trial court correctly dete rmined that appellant was not in custody during his interview with the detec tives. The detectives initially contacted appellant at his work, near the end of his sh ift. They were wearing plain clothes and concealed both their badges and their weapons. They asked appellant if he would go with them to the police sta tion; they did not tell appellant he was required to accompany them. Appellant drove his own vehi cle to the station. The interview was
conducted in a standard in terview room, containing a table and five chairs. The detectives told appellant that he was free to leave at any time, he was not under arrest and that he could choose to answer, or to no t answer any of their questions. They left
the door to the interview room open during the interview, closing it only when they left the room so appellant could write his lett er of apology. At no point was appellant placed under any physical restraint such as handcuffs. These facts are substantial evidence that appellant was not "in custody" before he was informed, at the end of the12 interview, that he could not leave the station. ( People v. Stansbury (1994) 9 Cal.4th 824, 832-833; People v. Chutan (1999) 72 Cal.App.4t h 1276, 1282-1283.) Accordingly, the trial court correctly admitted appellant's pre-advisement statements
into evidence.
Conclusion The judgment is affirmed.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.13 Kent Kellegrew, Judge
Superior Court County of Ventura

________________ ______________

Sharon M. Jones, under appointment by the Court of Appeal, for Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney Gene ral, Zee Rodriguez, Deputy Attorney General, for Plain tiff and Respondent.