Filed 10/19/20 P. v. Vargas CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE, B301513
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA471048)
v.
CARLOS JUAQUIN SANCHEZ
VARGAS,
Defendant and Appellant.
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.
**********
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
2
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.
3
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
4
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
5
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
6
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
7
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.
8
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
9
victim for his conduct. The court imposed two-year terms (one-
third 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].)
10
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
11