Filed 8/3/21 P. v. Gudino CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080729
Plaintiff and Respondent,
(Stanislaus Super. Ct.
v. No. CR-19-001465)
JESUS GUDINO GUDINO,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A.
McFadden, Judge.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant
and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
INTRODUCTION
Appellant and defendant Jesus Gudino Gudino entered into a negotiated
disposition based on the sexual molestation of his granddaughter. Thereafter, he moved
to withdraw his plea and the motion was denied, and he was sentenced to 12 years in
prison.
On appeal, his appellate counsel has filed a brief that summarizes the facts with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.
FACTS1
On or about October 25, 2018, defendant held his four-year-old granddaughter
down on the couch against her will and licked her vagina. At a subsequent interview,
defendant admitted he touched his granddaughter’s vagina with his mouth and tongue.
PROCEDURAL BACKGROUND
On February 22, 2019, a complaint was filed in Stanislaus County Superior Court
charging defendant with count 1, oral copulation or sexual penetration of a child 10 years
of age or younger, which carried a term of 15 years to life (Pen. Code, § 288.7,
subd. (b));2 and count 2, commission of a lewd act on a child (§ 288, subd. (a)).
On May 7, 2019, defendant, who was present with his attorney and an interpreter,
entered into a negotiated disposition and pleaded no contest to a violation of section 287,
subdivision (c)(2)(B), oral copulation on a person under the age of 14 years accomplished
by force, violence, duress, or menace, as a lesser related offense to count 1, for an upper
term of 12 years and dismissal of count 2. The court advised and obtained waivers of his
constitutional rights. The court advised defendant it would also issue a stay-away order
from the victim. Defendant said he understood.
1 The parties stipulated to the factual basis at defendant’s plea hearing.
2 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
Motion to withdraw plea
On September 6, 2019, defendant appeared with a newly retained attorney, who
advised the court that he would be filing a motion to withdraw the plea.
On October 2, 2019, defendant filed a motion to withdraw or set aside his plea
because he was 70 years old and “may have” lacked mental capacity to understand the
plea agreement, since people of similar ages are exempt from jury duty in the majority of
states. Defendant also claimed he entered the plea without his prior attorney moving to
suppress his pretrial statement and against his own free judgment, because he incorrectly
thought the plea would prevent Child Protective Services from removing the victim from
his daughter’s custody, and he did not understand the legal system because of cultural
and language barriers.
Defendant submitted a supporting declaration that he did not know the
investigating officer was a certified translator, he was fearful of police because they were
corrupt in Mexico, he was interviewed behind locked doors, and he was never advised of
the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436.
On November 8, 2019, the prosecution filed opposition and summarized the case
based on investigative reports and defendant’s pre-plea interview. Defendant’s daughter
reported that the victim said defendant touched her private parts. Defendant was
interviewed in Spanish by Detective Navarro, and admitted he performed acts of oral
copulation on the victim.3 Defendant was assisted by an interpreter at all court
proceedings, including the plea hearing, and understood the terms of his plea.
3 The instant record does not contain the transcript or video of defendant’s pre-
plea interview. According to the prosecution’s opposition, defendant told Detective
Navarro that he knew the case being investigated was regarding his granddaughter.
Navarro explained that defendant was not under arrest and that he was free to leave
anytime during the interview. Defendant stated that he understood, and he still wanted to
speak with Navarro. Defendant said that on October 25, 2018, his granddaughter was
staying at his residence and was on the couch playing when he walked into the room.
Defendant stated that he noticed her underwear was partially down, so he removed them
3.
Evidentiary hearing
On November 25, 2019, the court held an evidentiary hearing on defendant’s
motion.
Detective Navarro testified that in January 2019, he called defendant to arrange for
an interview based on the report from the victim and her mother. Defendant agreed and
Navarro asked where he wanted to meet. Defendant said he would meet him at the police
department, but he failed to show up at the scheduled time. In February 2019, Navarro
again talked to defendant and asked if he was still willing to meet him at the police
department, and defendant agreed. Navarro did not tell defendant to come by himself or
that he couldn’t bring anyone with him. Defendant arrived as scheduled, and Navarro
met defendant in the lobby and asked him if he was carrying any weapons. Defendant
said no, and Navarro did not search him.
Detective Navarro escorted defendant to an upstairs interview room that was used
to talk with victims and witnesses, and not suspects. They walked through three doors,
none of which Navarro had to unlock or that automatically locked after they went through
them. Navarro was not wearing a uniform, he was not carrying a gun or any weapon, and
defendant was not in handcuffs.
The interview was videotaped and played for the court. The prosecutor stated the
interview lasted 20 minutes.
Detective Navarro testified he was not a certified Spanish interpreter, but he was
fluent and conducted the interview in Spanish. Defendant never acted like he did not
understand him and never said he did not want to answer questions. Navarro testified he
told defendant he was free to leave, and defendant understood him.
a little further to have access to her vagina. Defendant said he placed both hands on her
hips and licked her vagina for “less than 50 seconds.” Defendant said he looked up and
saw her staring back at him, so he stopped and left the room.
4.
Detective Navarro testified he did not advise defendant of the Miranda warnings
because he was not in custody and he was free to leave throughout the interview. At the
end of the interview, Navarro arrested defendant because he confessed to the charge.
Mr. Bito, defendant’s public defender, also testified at the evidentiary hearing, and
explained he watched the video of defendant’s interview and did not move to suppress
defendant’s statement because defendant voluntarily went to the police department and
he was specifically told that he was free to leave at any time. Mr. Bito did not see a
“colorable or strong argument to keep his statements out because of the lack of issues
regarding whether or not he [was] detained.”
Defendant testified he was afraid when he went to the police station. Detective
Navarro said he was free to leave, but he did not feel safe and was afraid he would be
charged with escaping. Defendant admitted Navarro never used force against him, but he
was afraid because Navarro stared at him, touched him on the shoulder, and sat next to
him. Defendant admitted Navarro spoke in Spanish and defendant understood everything
he said. Defendant could not recall signing the declaration filed in support of his motion
to withdraw his plea.
Dr. Jesse De La Cruz, an instructor at CSU Stanislaus on cultural diversity,
testified he interviewed defendant prior to the hearing, and defendant was an older man
who was familiar with corruption in the Mexican legal system. Dr. De La Cruz had
watched the video of defendant’s interview with law enforcement and believed defendant
did not trust the police or understand he had the right to consult with an attorney because
of his prior life experiences.
The court’s ruling
The court denied defendant’s motion to withdraw his plea. The court found
Mr. Bito’s prior representation of defendant was not in any way deficient, particularly in
his decision not to file a motion to suppress defendant’s pre-plea statements. The court
stated it reviewed the video of the interview and found defendant was at ease with
5.
Detective Navarro, used a lot of hand gestures, appeared to explain a lot of details, and
did not appear afraid of Navarro. The court noted that when Navarro sat next to
defendant and placed his hand on him, it was more of a “befriending type of gesture to
make [defendant] feel at ease,” it “certainly could not have been such that [defendant]
would have been afraid by those gestures,” and defendant did not react in such a manner.
The court noted defendant failed to appear for the first scheduled interview, and he
voluntarily went to the police department for the second appointment. He would have
known that he did not have to go since he did not appear the first time, he was not forced
to give any statements, and he voluntarily confessed.
The court found the negotiated plea gave defendant the opportunity to receive
parole compared to the original charges that would have resulted in a life term. The court
had conducted the plea hearing and found defendant fully understood his rights and the
plea.4
4“Miranda warnings are not required ‘simply because the questioning takes place
in the station house, or because the questioned person is one whom the police suspect.’
[Citations.]” (People v. Moore (2011) 51 Cal.4th 386, 402, italics added in original.) To
determine whether an interrogation is custodial we consider a number of circumstances,
including “whether contact with law enforcement was initiated by the police or the
person interrogated, and if by the police, whether the person voluntarily agreed to an
interview; whether the express purpose of the interview was to question the person as a
witness or a suspect; where the interview took place; whether police informed the person
that he or she was under arrest or in custody; whether they informed the person that he or
she was free to terminate the interview and leave at any time and/or whether the person’s
conduct indicated an awareness of such freedom; whether there were restrictions on the
person’s freedom of movement during the interview; how long the interrogation lasted;
how many police officers participated; whether they dominated and controlled the course
of the interrogation; whether they manifested a belief that the person was culpable and
they had evidence to prove it; whether the police were aggressive, confrontational, and/or
accusatory; whether the police used interrogation techniques to pressure the suspect; and
whether the person was arrested at the end of the interrogation. [Citations.]” (People v.
Aguilera (1996) 51 Cal.App.4th 1151, 1162.)
Based on the testimony and the trial court’s findings, defendant was not in custody
when he confessed to the charged offenses and Miranda warnings were not required.
Defendant voluntarily agreed to the first interview, suggested he would meet Navarro at
6.
Sentencing
Also, on November 25, 2019, the court held the sentencing hearing. The court
denied probation and imposed the upper term of 12 years, consistent with the negotiated
disposition, and served defendant with an order to stay away from the victim and the
victim’s family for 10 years.
The court also imposed a restitution fine of $300 (§ 1202.4, subd. (b)) and
suspended the probation revocation fine in the same amount (§ 1202.45); a court
operations assessment of $40 (§ 1465.8); and a criminal conviction assessment of $30
(Gov. Code, § 70373).
the police department, and knew he did not have to go since he did not appear.
Defendant voluntarily showed up for the rescheduled interview one month later.
Detective Navarro met him in the lobby; he did not search him and only asked if he was
carrying any weapons. Navarro was the only officer who questioned him, he was not in
uniform, and he was not carrying his sidearm or any weapon. Defendant admitted that
Navarro spoke in Spanish, and he understood him. Defendant was advised that he was
free to leave; he was not restrained or locked in the interview room.
The trial court reviewed the video and stated that defendant appeared at ease with
Detective Navarro, he did not appear afraid of him, and Navarro did not engage in any
inappropriate or coercive conduct. (See also Stansbury v. California (1994) 511 U.S.
318, 326 [“whether the interrogating officers have focused their suspicions upon the
individual being questioned (assuming those suspicions remain undisclosed) is not
relevant for purposes of Miranda”]; Green v. Superior Court (1985) 40 Cal.3d 126, 131–
135 [a defendant who voluntarily interviewed with officers at the police station, was
advised he was free to leave if he wanted to and submitted to a detailed nonaccusatory
interview over a two-hour period was not in custody during a station house interview]; In
re Kenneth S. (2005) 133 Cal.App.4th 54, 63–65 [juvenile who was voluntarily brought
to station house by foster mother and interviewed in an area restricted from public access
was not in custody where officer advised him he was free to leave at any time]; People v.
Moore, supra, 51 Cal.4th at p. 402 [the defendant’s voluntary interview, during which
two officers questioned him in an unlocked room at station house for one hour and 45
minutes, asking “accusatory and skeptical questions,” was found to be noncustodial
where interview “as a whole, [was not] particularly intense or confrontational”]; People
v. Spears (1991) 228 Cal.App.3d 1, 25–26 [the defendant was not in custody during 75-
minute interview at police station when “courteous and polite” officers asked detailed,
but not accusatory, questions].)
7.
On January 23, 2020, defendant submitted a notice of appeal to the trial court and
requested a certificate of probable cause based on ineffective assistance and an illegally
induced plea. On January 29, 2020, the trial court issued a certificate of probable cause,
and the superior court filed the notice of appeal.
DISCUSSION
As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on June 12, 2020, we invited
defendant to submit additional briefing. To date, he has not done so.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
8.