Filed 10/1/21 P. v. Garcia CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE

,
Plaintiff and Respondent

,

v.

J UAN GARCIA

,
Defendant and Appellant. B300914

(Los Angeles County Super. Ct. No. NA107065 )

APPEAL from a n order of the Superior Court of Los Angeles County, Gary J. Ferrari , Judge. Affirmed.
Mark Alan Hart , 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, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney G eneral, David A. Voet , Deputy Attorney General, for Plaintiff and Respondent.2 Defendant and appellant Juan Castellanos Garcia (defendant) carried a seven

- year

- old relative out of her home and into an alley where he choked and sexually assaulted her until a passerby stopped him

. A jury convicted defendant of kidnap p ing to commit another crime (child abuse) and several counts of
forcible lewd acts upon a child and oral copulation or sexual penetration with a child ten years old or younger. W e consider
whet her the trial court should have suppressed defendant’s post

arrest statements to investigators because his low intelligence quotient (IQ) and verbal comprehension skills indicate his waiver
of his Miranda 1 rights was not knowing and intelligent.

I. BACKGROUND
A. The Offense Conduct, as Established by the Evidence
at Trial
1. Witness testimony The victim, Jocelyn

, was seven years old at the time of the
offense in August 2017. She was nine when she testified at trial. She lived with her mother, fa ther, and siblings in an apartment in Long Beach, California

. Defendant is Jocelyn’s father’s cousin, but she did not recall meeting him before the crimes occurred

. On the evening in question, Jocelyn fell asleep watching
television on a couch in the liv ing room of her family’s apartment

. She woke up to defendant carrying her out of the apartment over
his shoulder. She bit and scratched defendant and told him to let her go. Defendant took her to an alley

, placed her on her back

, and pulled her pants do wn. Jocelyn testified at trial that she did not recall whether defendant touched her private parts, but she told investigators in an interview conducted the afternoon after

1 Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ).3

the incident (a recording of which was played at trial) that
defendant touched her private parts with his hand. Defendant choked Jocelyn, and she “felt like [she] was about to die.” She screamed for help in English and Spanish. Defendant choked her harder and told her to shut up in Spanish

. Jocelyn did not lose consciousness, but sh e felt dizzy and her vision was blurry. She told investigators she pretended to be dead, but she could not recall doing so at trial. Defendant stayed on top of Jocelyn until another man kicked defendant and argued with him in Spanish. Defendant fled whe n the other man said he was going to call the police. The other man helped Jocelyn back to her family’s apartment. Henry Estuardo Ramirez Lopez (Lopez) was the man who
confronted defendant. Lopez testified h e was walking to his car around 2:15 a.m. when he heard Jocelyn cry out. Lopez saw defendant on top of Jocelyn , who was attempting to fight him off

. Defendant’s pants and underwear were pulled down to his knees

. Defendant had one hand on Jocelyn’s neck and he was moving as if he was having sex. Lopez kicked defendant in the ribs. Defendant rolled over and Lopez saw his exposed and erect penis. Lopez had a brief conversation with defendant in Spanish.
Defendant sounded drunk. Lopez asked who the girl was, and defendant responded she was his friend’s daughter. When
d efendant offered to let Lopez have sex with Jocelyn, Lopez hit him again. Defendant fled, and Lopez helped Jocelyn stand up. Lopez escorted Jocelyn about 200 feet back to her family’s

ap artment. Lopez identified defendant in a six

- pack photo array the same day. Long Beach Police Department officer Alexander Saldana
testified that he and other officers found defendant based on4

information communicated from dispatch regarding defendant’s cell phone location. Defendant cooperated with the officers and was taken into custody around 5:40 a.m. (a few hours after the incident). Defendant did not seem intoxicated, and Officer
Saldana did not smell alcohol on his breath. Jennifer Rivera (River a), a sexual assault nurse examiner, examined Jocelyn around 4:00 a.m. 2 She documented extensive bruising

, a tear to Jocelyn’s lip, and pinpoint hemorrhages indicating strangulation

. Another nurse, Malinda Wheeler,
testified the hemorrhaging observed on Jocelyn would require 10 to 20 seconds of pressure on the neck

. Rivera observed debris “all over” Jocelyn’s clothing. She also had dirt on her external genitalia

. Rivera also observed redness and bruising to Jocelyn’s vagina , which she opined was likel y caused by “a finger, a penis, or an object.” Rivera collected swabs from various areas of Jocelyn’s body and collected reference samples from Jocelyn and defendant. These were analyzed by Anselmo Casas (Casas) , a criminalist employed by the Los Angeles County Sheriff’s Department

. Casas testified that saliva was found on Jocelyn’s neck, thighs, vulva, vestibule, and anus. Defendant ’s DNA was a probabilistic
match to samples taken from Jocelyn’s umbilicus (belly button), neck, both thighs, and v ulva

. Jocelyn did not contribute DNA to samples taken from defendant’s penis and scrotum.

2

. Defendant’s recorded police interview Long Beach Police Department detective Denise Green and a colleague interviewed defendant about 11 hours after his

2 A follow

- up examination was conducted the next day.5

arres t. 3 The interview was conducted at a Long Beach Police Department facility. Detective Green testified she and her colleague are fluent in Spanish and conducted the interview in Spanish. Detective Green recorded audio of the entire interview
and video o f parts of the interview. The recorded audio has a
total run

- time of about one hour and 12 minutes. As we shall discuss in more detail, the trial court denied defendant’s motion
to suppress his statements during the interview

, and the recordings were pla yed at trial. At the beginning of the interview, one of the detectives told defendant they were going to read him his rights and he should
let them know if there was anything he did not understand. The
detectives then gave Miranda warnings . Defendant acknowledged the first warning (“you have the right to remain silent”) with an “[u]h

- huh.” When the detectives completed the warnings and asked defendant whether he understood, defendant responded, “Yeah, yes, but

. . . the money, I mean, I, I don’t have any.” One of the detectives explained, “what she [i.e. the other detective] means is that if you don’t have money for an attorney, the court will assign you an attorney and won’t charge you.” Defendant responded, “Oh, okay.” Defendant told the detectives
there was nothing else he did not understand and he agreed it
would be “okay if we talk

. ” Defendant told the detectives he was born in Oaxaca,
Mexico in 1976. He had been in the United States less than a

year and worked at two restaurants.
Defendant was drinking at Jocelyn’s family’s apartment the previous evening. Defendant, his cousin (i.e., Jocelyn’s father), and one of his cousin’s friends consumed 48 beers (two cases of

3 During the interview, defendant denied feeling drunk.6

24). This was defendant’s second visit to his cousin’s home.
Defendant initially claimed he could not remember anything other than going to his cousin’s apartment to drink

, and he professed an inability to recall how he sustained various
scratches. When the detectives showed defendant a photograph of Jocelyn, he said, “I think I did something bad.” Defendant
admitted he led Jocelyn outside by the hand because he was not in his right mind after drinking so much. Defendant confessed to hitting Jocelyn in the face with a closed fist and putting his fingers in her mouth when she screamed for hel p. The detectives asked why defendant hit Jocelyn and he said that he wanted to abuse her sexually. He said he choked her because “lost [his]
mind

. ” The detectives asked de fendant what he put in Jocelyn’s vagina, telling him they already knew and it was “a question of [defendant] telling [them] what [he] did.” Defendant admitted
rubb ing Jocelyn’s vagina two times and put ting his tongue inside.
Defendant maintained that Lopez’s intervention prevented him from raping Jocelyn, and the detectives told him (falsely) that semen was found in Jocelyn’s vagina. Defendant indicated
he did not know the word “semen” ; he said he used the word “milk” to refer to the substance after the detectives explained.
Defendant admitted to penetrating Jocelyn’s vagina with his penis two times, but said he could only get “the very tip” inside. After making this statement, however, defendant still continued

to deny having raped Jocelyn.
The de tectives gave defendant materials to write a letter of apology to Jocelyn and her parents, emphasizing that defendant7

needed to include everything he had told them. 4 Defendant read the letter he wrote: “Jocelyn, um, forgive me for the, um, the

wrong, wr ong I did to you. I’m sorry and please forgive me, um, for taking you out of the house and, and I’m sorry for hitting you and, and, and taking [you] there in the house. Um, I’m asking you from the bottom of my heart. I’m sorry and, and, and forgive
me f or the wrong that I did and, um, and forgive me c ousin for what I did. I, I regret it. Forgive me please and forgive me Jocelyn for, for hitting you. I’m sorry and, and, and Jocelyn, I’m sorry. Never, never would I do harm to you and forgive me please for everything wrong I did.” Asked what else he did wrong, defendant responded, “trying to rape.” The detectives also asked
defendant whether he regretted touching Jocelyn’s vagina with his hand, touching her vagina with his mouth, and touching her vagin a with his penis ; defendant answered “yes” to all

.

B. Verdict and Sentencing After presentation of evidence at trial, a jury found defendant guilty on all charged crimes . Counts one through
three of the information against him alleged a forcible lewd a ct upon a child under the age of 14

. ( Pen. Code, 5 § 288, subd. (b)(1)

. ) Counts four through eight alleged oral copulation or sexual penetration with a child ten years of age or under. (§ 288.7, subd. (b).) Count nine alleged kidnapping to commit a lewd and

4 Detective Green stopped recording wh ile defendant wrote the letter and resumed recording when he finished

.

5 Undesignated statutory references that follow are to the Penal Code.8

lascivious act. (§ 209, subd. (b)(1).) Count ten alleged child
ab use. (§ 273a, subd. (a).) The jury found defendant personally inflicted great bodily injury within the meaning of section 12022.8 as to counts one through eight and within the meaning of section 12022.7, subdivision (a) as to counts nine and ten. The ju ry also found true allegations relating to kidnapping a child under the age of

14. 6
The trial court sentenced defendant to non

- consecutive
terms of life without the possibility of parole on counts one, two, and three. The trial court imposed additional, consecutive
indeterminate terms fo r some other offenses of conviction and stayed punishment pursuant to section 654 on the remaining counts; there is no need for our purposes to recount the particulars.

II. DISCUSSION
Defendant contends the trial court erred in denying his motion to suppress the police interview because his low IQ and verbal comprehension scores preclude a finding that his Miranda

6 A s to count one, the jury found true allegations that defendant kidnappe d Jocelyn within the meaning of sections 209 and 667.61, subdivisions (a) and (e)

, and kidnapped a child under the age of 14 within the meaning of sections 667.61, subdivisions (j)(1) and (d)(2), and 667.8, subdivision (b). The jury found true the same al legations as to counts two and three, except with respect to section 667.8, subdivision (b) (which was not listed on the verdict form for these counts). As to counts four through eight, the jury found true the allegation that defendant kidnapped a child u nder the age of 14 within the meaning of section 667.8, subdivision (b).9

waiver was knowing and intelligent. It is well established, however, that the effectiveness of a Miranda w aiver depends on the totality of the circumstances. The recorded interview provide s ample support for the trial court’s conclusion that defendant’s repeated acknowledgment and waiver of his rights

— along with his attempts to minimize his culpability

— demons trate he adequately understood his rights and the consequences of
waiver.

A. Additional Background Defendant moved to suppress his post

- arrest statements to the detectives . He argued he was incapable of making a knowing and intelligent waiver.
At the hearing on defendant’s motion, defendant called Dr. Francisco Gomez, a clinical psychologist , to testify. Dr. Gomez explained his “standard forensic evaluation” of defendant’s capacity to waive his Miranda rights included four parts: a clinical interview, psychological testing, a review of the interview recording, and an assessment for malingering. During the clinical interview, Dr. Gomez noted defendant never went to school and, having been in the United States only about eight months, was “not really familiar with the system here.” Dr. Gomez testified that people with defendant’s background “tend to go along with wha t [authority figures] say and say yes to things.” Although Dr. Gomez sometimes had to repeat questions to defendant in a slow manner, “[defendant] pretty much was grasping what [Dr. Gomez] was asking him.” Defendant has an IQ of 61, placing him in the fi rst percentile. Dr. Gomez testified that IQ tests measure verbal ability, nonverbal thinking ability, and processing speed, and10

“[w]hat really brought down [defendant’s] I.Q. is processing speed

. . . .” Based on several other tests, Dr. Gomez concluded “[defendant’s] ability to process verbal information is slow.

. . . So generally when you’re explaining something to him, if you just go at a normal pace, he won’t pick it up as fast. You’ll be on page [three] and he’ll still be on page [one]. So you’re asking him questions and so he’s going to have to

— if he doesn’t ask you to clarify, he’s just going to be answering impulsively.” Dr. Gomez further testified that defendant tested at the second grade level for reading and oral comprehension.
Dr. Gomez o pined that, given these limitations, defendant
was unable to understand his Miranda rights when read as “one long string” as opposed to “one

. . . at a time.” He further stated that, in any case, understanding Miranda rights requires at least a seventh gr ade reading level. Dr. Gomez did not believe defendant’s comment about having no money for an attorney demonstrated his understanding of the Miranda warnings as a whole because “[t]he one thing [defendants] always pick up is the cost of an attorney.” The letter defendant wrote to Jocelyn and her parents during the interview also did not alter Dr. Gomez’s opinion because “a second grader, third grader in that range is going to be able to write basic concrete sentences.”
The trial court asked Dr. Gomez whe ther it should “assume that when [defendant] says yes, he does understand [his rights],
that he [in fact] doesn’t understand[.]” Dr. Gomez responded that “the tendency is, even if you have people with a college education, they tend to say yes to waive the ir Miranda .” When the trial court asked Dr. Gomez whether defendant’s responses to the detectives’ questions throughout the interview were contextually appropriate, Dr. Gomez said he “didn’t really focus in on that,”11

but acknowledged “that [defendant] was denying and then

— then
he wasn’t.”
The trial court denied defendant’s suppression motion, reasoning as follows: “I

. . . want to note that at the beginning of the interview, the detectives did explain to the defendant that if he had any questions, anythi ng he did not understand his rights [ sic ] , that let [ sic ] the officers know and they will explain it to him. [¶] In reading through the entire interview, I didn’t find anything in that interview that would indicate to me that the defendant could not comp rehend questions, many of which were more complicated than the advisement. [¶] There is nothing that led me to believe that he did not understand the questions. [¶] I just

— you know, I have all due respect for the doctor but there is nothing in what I h eard, nothing in what I read that le[ ]d me to believe that he did not understand his rights and it was not an intelligent and knowing waiver.”

B. Applicable Law and Standard of Review

“ ‘ To safeguard a suspect’s Fifth Amendment privilege against self

- incrimination from the “ inherently compelling

pressures ” of custodial interrogation ( Miranda

, supra , 384 U.S. at p. 467), the high court adopted a set of prophylactic measures requiring law en forcement officers to advise an accused of his right to remain silent and to have counsel present prior to any custodial interrogation ( id. at pp. 444

- 445). ’ [Citation.] A suspect who has heard and understood these rights may waive them. [Citations.]” ( People v. Leon (2020) 8 Cal.5th 831, 842

- 843 ( Leon ).)

“‘ [T]he prosecution bears the burden of establishing by a preponderance of the evidence that the waiver was knowing,12

intelligent, and voluntary under the totality of the circumstances of the interroga tion. ’ [Citations.]” ( Leon

, supra , 8 Cal.5th at 843.) A defendant’s waiver is voluntary only if “‘ it was the product of a free and deliberate choice rather than intimidation, coercion, or deception .’” ( People v. Molano (2019) 7 Cal.5th 620, 648.) A de fendant’s waiver is knowing and intelligent only if

“‘ made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. ’” ( Ibid. ) Relevant considerations include the defendant’s age, experience , education, background, and intelligence. ( People v.
Johnson (2010) 183 Cal.App.4th 253, 293.) Our review of a trial court’s ruling on a motion to suppress
is limited to the evidence before the court at the time that it ruled. ( People v. Moore (2006) 3 9 Cal.4th 168, 171.) “[W] e accept the trial court’s factual findings and credibility assessments if supported by substantial evidence.

. . . ‘Where, as was the case here, an interview is recorded, the facts surrounding the
admission or confession are und isputed and we may apply independent review. ’ [Citation.]” ( Leon

, supra , 8 Cal.5th at 843.)

C. Defendant’s Waiver Was Knowing and Intelligent Our review of the record, and the interview recordings in particular, leave us convinced defendant was capable of understanding and did in fact understand his Miranda rights and the consequences of waiving them

. The detectives prefaced the Miranda advisement with an
invitation for defendant to let them know if he did not
understand anything

. Then, aft er reading defendant his rights,
the detectives and confirmed his understanding by asking both whether there was anything he did not understand and,13

affirmatively, whether he understood the Miranda warning

. In
addition , and c ontrary to Dr. Gomez’s charact erization or understanding of the Miranda advisement as having been given in one uninterrupted stream , there were notable breaks: initially when defendant interjected with “uh

- huh” after the advisement that he had the right to remain silent and later when defendant told the detectives he did not understand his right to an appointed attorney and they clarified to defendant’s satisfaction the meaning of the right to free representation. Defendant’s statements during the interview attempting to
deflect or min imize his culpability provide further reason to conclude he was capable of making, and did make, a knowing and intelligent waiver of rights. D efendant repeatedly emphasized he had been drinking and initially claimed he was unable to
remember what he did t o Jocelyn. Then he conceded he wanted to sexually abuse Jocelyn, but claimed Lopez prevented him from doing so. These and other statements during the interview that

were calculated to minimize his culpability underscore
defendant’s awareness of the stake s of the interview. ( See Leon

, supra , 8 Cal.5th at 844 [holding the defendant’s attempt to deceive investigators “ indicate [d] attentiveness and an awareness
of his circumstances ”]; People v. Lewis (2001) 26 Cal.4th 334, 384 ( Lewis ) [holding that a 14

- year

- old, schizophrenic defendant’s waiver was knowing and intelligent because, among other things,
he was “ keen enough to change his story ” when confronted with facts contradicting previous statements] ; People v. Whitson (1998)
17 Cal.4 th 229, 249 [“ Although [the] defendant possessed relatively low intelligence, he was sufficiently intelligent

. . . to attempt to deceive officers ”] .) D efendant’s demeanor during the
interview also was not overly deferential in a way that would14

lend great er credence to Dr. Gomez’s belief that defendant’s background made him likely to “say yes to things

. ” Defendant did not, for example, concede having touched Jocelyn’s buttocks when the detectives falsely suggested his semen was found in
that area.
Defend ant counters principally by emphasizing a purported inability to understand Spanish as well as his low IQ and verbal
skills

. The first of these points is baseless. Although defendant

states his first language is a local dialect of Spanish

, he did not
hav e any difficulty conversing with the detectives in Spanish. Indeed, Dr. Gomez himself examined defendant in Spanish, and
defendant used a Spanish interpreter at trial. 7 As to the second of these points, defendant cites Cooper v. Griffin (5th Cir. 1972) 455 F.2d 1142 ( Cooper ) for the proposition
that his IQ score of 61 and his second grade level for reading and oral comprehension made a knowing and intelligent waiver impossible. In Cooper , brothers aged 15 and 16 with IQs between 61 and 67 sought habeas relief because their convictions were based on confessions obtained without knowing and intelligent
Miranda waivers. ( Cooper

, supra , at 1143.) Among other things, they presented testimony by a special education teacher who had known them “‘practically all their [lives]’” and did not believe they could understand the Miranda warnings. ( Ibid. ) The only contrary evidence was the testimony of police officers who stated

7 The exchange in which defendant told the detectives he did not know the meaning of “semen” does not reflect a broader lack of comprehension

— to the contrary, this exchange demonst rates his willingness to speak up when he did not understand the detectives.15

“ each boy appeared to understand the warning .” ( Id. at 1144.)
The Fifth Circuit held the petitioners’ “ uncontradicted ” evidence
left “ no alternative but to hold that the waivers by the two boys were not knowingly and intelligently made .” ( Ibid. ) Our Supreme Court has emphas ized that Cooper is “not controlling precedent” and has repeatedly declined to recognize a minimum IQ or other quantitative metric below which a defendant is incapable of making a knowing and intelligent
waiver of Miranda rights . ( See, e.g., Leon

, supra , 8 Cal.5th at 844 [“ We have not decided that any particular intelligence or experience level is required to understand the Miranda warnings
or to waive them ”]; Lewis

, supra , 26 Cal.4th at 384 [“‘“ Neither a low I.Q. nor any particular age of minority is a proper basis to assume lack of understanding, incompetency, or other inability to voluntarily waive the right to remain silent under some presumption that the Miranda explanation was not
understood ”’”].) That alone is reason to put Cooper to the side as an unreliable guide , but even taking the case on its own terms

, the record here is different in a crucial respect

. If a recording or transcript of the interrogation was available in Cooper , it did not merit a mention in the Fifth Circuit’s opinion. H ere, on the other
hand

, we need not rely on police testimony that defendant “appeared” to understand his rights. The recordings in our appellate record demonstrate defendant was actively and intelligently engaged when the detectives read him his rights an d throughout the interview

. Defendant suggests that even if controlling case law does not recognize a minimum IQ or verbal comprehension level for a knowing and intelligent waiver, Dr. Gomez’s testimony
establishes that such a line exists as a matter of s cientific fact.16

That does not square with Supreme Court precedent. In Leon

, an expert (apparently the same Dr. Gomez who was the defense’s expert in this case) testified that “ understanding the Miranda warnings requires at least seventh grade level reading comprehension. ” ( Leon

, supra , 8 Cal.5th at 841.) Emphasizing
that the tri al court was “entitled to reject” this testimony, the Supreme Court affirmed the trial court’s finding that the defendant’s waiver was knowing and intelligent based on its independent review of the videotaped interrogation. ( Id. at 844

- 845.)
Furthermore

, the trial court’s questioning of Dr. Gomez in
this case revealed the probative value of his opinion was limited by the fact that he “didn’t really focus in on” defendant’s responses to the detectives’ questions

. Like the defendant in
Leon

, defendant was admonished in a language he demonstrably understood, repeatedly and unequivocally waived his rights, 8 and attempted to minimize his culpability during the interview. ( Leon

, supra , 8 Cal.5th at 844

- 845.) Under these circumstances,
the trial court’s concl usion that defendant’s waiver was knowing and intelligent is well supported.

8 We are not persuaded by defendant’s suggestion that the use of a printed waiver form was a decisive factor in Leon

. Th e defendant contended he “ looked at the form only briefly and signed without reading ” ( Leon

, supra , 8 Cal.5th at 843)

, and his signature was obtained during an interview that occurred the day before he ultimately confessed ( id. at 840

- 841). In any case , the Supreme Court made clear that its ruling was ba sed on its independent review of the recorded police interview. ( I d. at 844.)17 D. The Abstract of Judgment Must Be Amended
Defendant has withdrawn an argument that the abstract of judgment does not accurately reflect his sentence on count ten. There is, however, a different error in the abstract of judgment. In its oral pronouncement of defendant’s sentence, the trial court
stated defendant’s sentences of life without the possibility of parole on counts one through three are “not consecutive to each
other.” Both the trial court’s minute ord er and the abstract of judgment, however, indicate these sentences are consecutive. Because the oral pronouncement controls ( People v. Zackery (2007) 147 Cal.App.4th 380, 385), we will order the abstract of judgment amended.18 DISPOSITION The clerk of the superior court shall prepare an amended abstract of judgment indicating defendant’s sentences on counts one through three are not consecutive and deliver the amended abstract to the Department of Correctio ns and Rehabilitation. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOOR , J.