People v. Montoya CA2/8

Filed 6/13/22 P. v. Montoya 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B317260

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MCR052012)
v.

PEDRO MONTOYA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Mitchell C. Rigby, Judge. Affirmed.

Nuttall Coleman and Drandell, Roger T. Nuttall; Page Law
Firm and Edgar E. Page, for Plaintiff and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Michael P. Farrell,
Assistant Attorney General, Louis M. Vasquez, Rachelle A.
Newcomb, Amanda D. Cary and Lewis A. Martinez, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
 A jury convicted Pedro Montoya of four counts of
committing a lewd and lascivious act on a child under age 14
(Pen. Code,1 § 288, subd. (a)) and one count of sodomy on a child
under age 10 (§ 288.7, subd. (a)). Counts 1 through 4 involved
appellant’s niece J., while count 5 involved appellant’s niece L.
Both girls were eight years old at the time of the offenses. The
jury found true the multiple victim allegations for counts 1, 2, 3,
and 5 (§ 667.61, subds. (b) & (e)). The trial court sentenced
appellant to a term of 25 years to life for the section 288.7 sodomy
and, pursuant to section 667.61, four consecutive terms of 15
years to life for the section 288 convictions, for a total of 85 years
to life in prison.
Appellant contends the trial court erred prejudicially in
admitting a statement he made to police without being advised of
his right to remain silent as required by Miranda v. Arizona
(1966) 384 U.S. 436 [16 L.Ed. 2d 694, 86 S.Ct. 1602] (Miranda),
and in denying his motion for a new trial made on the same
ground. Appellant also contends the prosecutor committed
prejudicial misconduct by repeatedly using the word “victim”
during trial, in violation of a trial court order; his trial counsel
was constitutionally ineffective in failing to object to the use of
the word; and the trial court erred in denying his motion for a
new trial made on that ground. He contends the cumulative
effect of these errors was prejudicial. Finally, he asserts his
sentence of 85 years to life is cruel and unusual punishment. We
affirm the judgment of conviction.

1 Undesignated statutory references are to the Penal Code.

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 BACKGROUND

In April 2015, eight-year-old J. was living with her parents,
siblings, maternal grandmother and appellant, her maternal
uncle, at a residence on Vineyard. Her parents, grandmother and
appellant each had separate bedrooms. J. and her siblings slept
in the living room, or with their parents or grandmother.
One afternoon in April, J.’s father went to a store to
purchase some cigarettes for appellant. J. was at home with
appellant. When J.’s father returned from his errand, he entered
appellant’s room through that room’s separate outside entrance.
He saw J. on appellant’s bed, lying on her left side facing
appellant, with her hand extended toward appellant. Appellant
was standing near the doorway, with his pants partly lowered.
As J.’s father entered the room, J. retracted her hand and
appellant pulled up or fixed his pants. J.’s father told appellant
to leave the room so he could talk to J.
J.’s father told her she was not in trouble, and asked her
what had happened. J. pointed to her chest and said: “He was
touching me right here.” J.’s father asked her why appellant had
his pants down, and she replied: “Well, because I am touching for
him too.” She did not say what she was touching.
J. also told her mother that appellant had touched her.
Her mother was shaking and crying after talking to J. J’s mother
and father confronted appellant about the incident. Appellant
said, “I didn’t do nothing. I didn’t do nothing.” J.’s father was
angry and left to go to his mother’s house. J.’s mother and the
children joined him later that day. At some point, the mother
contacted law enforcement.
On July 6, 2015, J. was interviewed by Angelica Limon
(Limon), a child forensic interviewer for Madera County.

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J. described two incidents involving appellant. J. said that in the
more recent incident, when her father came into the room and
startled appellant, appellant touched her “boobies” with his hand,
first through her clothing and then by putting his hand under her
clothing. J. described an additional incident which occurred
when she and her cousin L. were sleeping in appellant’s bedroom.
When J. went to bed she was wearing a top, sweatpants and
underwear. When she woke up, her sweatpants were on the
floor, but she was still wearing her underwear and top. Her
mother saw the pants on the ground and told J. to put them on
and leave the room, and not to sleep there again. J. stated those
were the only two incidents involving appellant.
On July 14, 2015, Madera Police Officer Brent Cederquist
interviewed appellant about J.’s allegations at the Madera police
station, in a locked interview room. The interview was
videotaped, and the recording was played for the jury. Appellant
described adjusting J.’s shirt on the day her father came into the
room. He acknowledged touching her accidentally and briefly
while doing so, but denied any further touching. He did not
remember any incident where J. fell asleep in his bedroom and
her pants ended up on the floor.
That same month, appellant’s brother and sister-in-law
found out about the incident with J. They asked their children if
something similar had happened with them. Eight-year-old L.
replied yes. She said appellant had touched her private area. L.’s
mother contacted police.
On July 23, 2015, Josephina Roderick (Roderick), a child
forensic interviewer for Madera County, interviewed L.
L. described an incident which occurred when she was in
appellant’s bedroom with her two sisters and J. L. and J. were on

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the bed with appellant; J. was on top of the sheets and L. was
under them. Appellant put his hand under L.’s shorts and
underwear and rubbed her private area where she went pee.
L. did not like this and took his hand out of her pants. She then
went outside.
On August 24, 2015, J. was again interviewed by Limon.
J. described many more incidents of touching by appellant. She
said that appellant touched her where she went pee and on her
“boobies” more than 10 times, starting in April. He also made
her touch his private on multiple occasions. This touching
occurred in appellant’s bedroom. J. described one touching
incident in detail. It occurred when she was eight. She was in
appellant’s room watching The Little Mermaid 2 movie, when he
took off his pants, put his hand on her “boobies” and moved her
hand back and forth on his private. Something slimy came out of
his private. When appellant was finished, J. fell asleep.
J. also described an incident when appellant put his private
in her “tushy” where she would go “poop.” His private felt hard.
He moved it back and forth. It was very painful. Appellant
stopped when he was tired. J. went to her grandmother’s room.
Limon explained at trial that children do not always
disclose everything the first time she interviews them, due to
fear, guilt or embarrassment. She also explained that most
children do not have a sense of time. More specifically, J. did not
have a concept of time. Roderick also testified that children are
not very good at providing temporal time spans, and so dating
events is difficult for them. She further explained children are
not necessarily precise about the number of times a touching
occurred. In her experience, a child’s use of the present tense

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often indicates multiple incidents, whereas the use of the past
tense often indicates a single instance.
At trial, J. testified at length about incidents with
appellant. She first described an incident when she and
appellant were in his bedroom on the bed, watching The Little
Mermaid 2 movie. She said that his private where he peed
moved back and forth against her private where she peed and it
hurt. After the movie was over, his hand touched her private.
When he was done, he went to the bathroom and J. went to her
grandmother’s room.
J. explained her parents learned of the touching when her
father came into appellant’s bedroom and startled him. J. was on
the bed and appellant was standing, facing her. She said that
appellant was wearing red shorts, slightly pulled down, and plaid
underwear with a “hole” in it. She could see one of his hands on
his private, moving up and down. Appellant was using his other
hand to text. She did not touch appellant and he did not touch
her. She told her father and then her mother what happened.
Later, however, J. testified appellant had touched her private
and her breast area during this encounter. He used one hand
and continued texting with the other hand. She said this was the
only time he touched her breasts.
J. also testified about the incident where she was on
appellant’s bed with appellant, L. and two cousins, J. fell asleep
with her pants on. When her mother came in to wake her up, J.
and her mother saw J.’s pants on the floor. J. was still wearing
her underwear.
J. also testified about the incident where appellant put his
private in her private area where she went “poop.” He moved
back and forth and it hurt. At some point he stopped and J. left

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the room. J. added that a gray liquid came out of appellant’s
private before he put it into her bottom.
J. testified that on one other occasion, she touched
appellant’s private. She said this happened one time only. It
occurred when she was in his bedroom, doing her homework in
front of appellant’s television. When she finished, she laid down
on the bed to be more comfortable. Appellant was in the
bathroom. When he came out, J. pretended to be asleep. He took
one of her hands, put it on his private and moved it back and
forth. J. then testified this was the time she saw the gray liquid
come out of appellant’s private. When appellant went to the
bathroom again, she left.
L. also testified at trial, and gave an account of the incident
where appellant touched her private. Her testimony was
substantially similar to the account she gave in the forensic
interview.
Appellant testified on his own behalf at trial. He denied
touching or sodomizing J. in the way she described. He also
denied touching L.’s vagina. He testified it was “totally made
up,” but he had no idea why.
Appellant explained that on the day J.’s father came into
the room, J. was doing homework and appellant was texting his
girlfriend. J’s top was inappropriately low, and he told her to lift
it up; at the same time he himself lifted the shirt up two or three
inches. J’s father came in, gave appellant the cigarettes and left.
At some point shortly thereafter, J’s mother asked J. what her
father was talking about, but J. did not respond. The mother
then asked appellant what he did, and appellant replied: “I didn’t
do anything.” Appellant went to the front yard to smoke a
cigarette, and at some point J.’s father came outside and accused

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appellant of touching J. Appellant then left the house to get a
beer, and when he returned, J. and her parents were gone. That
day was the last time appellant talked to J.’s parents.
Appellant testified he was not forced to meet with Officer
Cederquist, but did so voluntarily because he had nothing to
hide. Appellant was not initially nervous, but then Officer
Cederquist began making accusations. The officer would not
accept appellant’s answer that he did not do it. Appellant felt he
had to answer the questions and did not feel free to leave.

DISCUSSION

A. Any Error in the Admission of Appellant’s Statement to
Police Was Not Prejudicial
Appellant contends the trial court erred in overruling his
objection to admission of his statement to police, which he asserts
was obtained in violation of Miranda. He also contends the trial
court erred in denying his motion for a new trial, made on the
same ground. We find any error in the admission of appellant’s
statement harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18 [17 L.Ed. 2d 705, 87 S.Ct. 824].)
Put differently, we find beyond a reasonable doubt that the jury
would have reached the same verdict if appellant’s statement had
not been admitted.
Police are required to inform individuals in custody of their
Miranda rights before they are questioned. (Stansbury v.
California (1994) 511 U.S. 318, 322 [128 L.Ed. 2d 293, 114 S.Ct.
1526].) If police take a suspect into custody and then interrogate
the person without such an advisement, the person's responses
cannot be introduced into evidence to establish guilt. (Berkemer

8
v. McCarty (1984) 468 U.S. 420, 429 [82 L.Ed. 2d 317, 104 S.Ct.
3138].)
Appellant clearly acknowledges in both his opening and
reply briefs on appeal that his statement during the interview
was a denial of wrongdoing. According to appellant, when Officer
Cederquist “specifically accused Appellant of not telling the truth
and then expressed the belief that the child’s version of what
occurred was in fact the truth, Appellant specifically began to
voice an objection as to what he was being accused of doing.”
“Appellant repeatedly denied that he did anything wrong.”
Appellant did admit to touching the child once, but “explained
that he was only straightening the child’s shirt because it was
really low.” “Appellant attempted to provide innocent reasons for
why there was a misunderstanding.”
Appellant contends his statement to police nevertheless
must be considered incriminating because the prosecutor referred
to it in closing argument, and the jury asked to watch the
videotape of the interview during deliberations. The prosecutor
did refer to isolated replies by appellant to Officer Cederquist’s
questions. Immediately before closing argument, however,
appellant himself had testified about the interview and given a
different perspective. The video was played for the jury on June
20, 2017, appellant testified on June 27, 2017, and closing
argument began on June 28, 2017. The most likely explanation
for the jury’s request was that it had forgotten details of the video
and wanted to see whose version of the interview was correct. In
this context, we do not find the jury’s request to re-watch the
video a manifestation of prejudice, particularly since we find
appellant’s overall response during the interview is most

9
reasonably understood as a denial of any improper touching, not
a confession or admission of guilt.
The evidence of molestation was strong. Although J. did
give somewhat varying accounts of appellant’s acts of sexual
touching, the two child forensic examiners explained children
have difficulty with the concept of time, and Limon specifically
testified J. did not have a concept of time. Roderick explained
children often have difficulty articulating how many incidents of
molestation occurred.2 At trial, faced with open-ended questions,
J. did not claim multiple (unidentified) instances of each type of
touching as she had in the second interview.
The behavior of J.’s parents was strong evidence that J.’s
initial account of appellant’s behavior was quite believable. They
immediately moved out of the house the same day that J’s father
found J. on the bed in appellant’s room. Although it is not clear
how long they remained out of the house, appellant stated he had
not spoken with his sister since that day.
J’s father’s account of finding appellant with his pants
partly lowered also corroborated J.’s account that appellant was
sexually interested in her. Although J’s father was a convicted
felon several times over, there was no apparent reason for him to
lie about this particular matter. J’s mother partially

2 Roderick herself relied on verb tense for cues about the
number of incidents. It is worth noting that during the second
interview J. simply answered yes to Limon’s questions about the
number of occurrences. Limon asked if the touching occurred
more than once, then asked more than three times, and then
asked if it occurred more than 10 times. J. simply responded:
“Uh huh” or “Yeah” to each question.

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corroborated the father’s testimony by describing his anger after
finding J. in appellant’s bedroom.
L.’s account of her own molestation by appellant was
consistent and credible, and partially corroborated J’s account of
one encounter with appellant: the setting for L.’s molestation
matched an account by J of being in appellant’s bedroom with L.
and J. falling asleep. In J.’s account, her sweatpants were on the
floor when she awoke. Further, L.’s testimony showed appellant
was sexually interested in girls of J.’s age.
In contrast, although appellant was adamant that the
accusations were made up and false, he could offer no
explanation for why J. and L. would make up such accusations. 3
He did not believe L’s parent would have L. make up her
accusation. Appellant said L’s father (appellant’s brother) was
still supportive of him. Appellant acknowledged J.’s mother (his
sister) did not want to testify against him and was crying on the
stand. He did not offer any reason why his sister might have
made J. lie.
In sum, appellant could offer no explanation for why any of
those involved would make up the accusations. We find the
evidence of molestation was such that the jury would have
convicted appellant even without hearing the pre-arrest
statement he gave to police. The admission of appellant’s un-
Mirandized statement was harmless beyond a reasonable doubt.

3 Appellant did maintain the incident when J.’s father came
into the room was innocent, and that he had simply been
adjusting J.’s shirt and accidentally and briefly touched her.
J., of course, claimed more extensive and sexual touching
occurred.

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B. Brief References to J. as a Victim Were Not Misconduct and
Were Harmless.
Appellant contends the prosecutor committed misconduct
by failing to obey “the trial court’s order to not use the term
‘victim’ and repeatedly used the term, both indirectly, directly
and/or circumstantially.” Appellant has overstated the trial
court’s order.
Before trial, appellant brought a number of motions in
limine, one of which, No. 14, sought an order precluding the use
of the term victim to refer to the two children. Appellant
requested an order that “the Prosecution, its witnesses, and any
other persons that address the jury are prohibited from referring
to, calling, commenting upon or introducing evidence that refers
to Jane Doe as the ‘victim.’ ” At the hearing on the motions, the
trial court referred to motion No. 14, stating “that was the
reference to Jane Doe as ‘victim,’ and I will grant that.”
After trial, at the hearing on appellant’s motion for a new
trial, the trial court explained: “[W]ith regard to the issue
concerning use of the word ‘victim,’ the spirit of the ruling that
this [c]ourt made in that regard was that the children were not to
be referred to as ‘victim’; some alternative such as ‘complaining
witness’ was to be used.” The court added: “Also with regard to
the spirit of the ruling concerning ‘victim,’ it was not directed to
any form of the word, such as ‘victim advocate,’ ‘victim services,’
or ‘victim of sexual assault.’ That was not the order and never
was the order.”
Appellant’s descriptions of the record citations show that
they fall into three categories: 1) use of the word “victim” in
contexts not prohibited by the trial court’s order: “victim
services,” “victimology,” “victim advocate,” and “sexual assault

12
victims”; 2) use of the word “victim” to refer directly to one of the
children, but which occurred outside the presence of the jury; and
3) references to J. as a “victim” in front of the jury. Although
appellant’s citations to the record are inconsistent in that he
appears to use a different version of the reporter’s transcript to
support his argument, we do not find the argument forfeited on
appeal.
As the trial court made clear in ruling on the new trial
motion, its order did not apply to terms such as “victim advocate”
or “victimology.” We see no error in this ruling.
Appellant’s motion can only be reasonably understood as
seeking to entirely preclude the use of the word “victim” in front
of the jury. Nothing in the trial court’s statement granting the
motion suggests that it was imposing a broader ban on such
usage, which applied even outside the presence of the jury. Thus,
the People (and the prosecution witnesses) did not violate the
trial court’s order by referring to the children as victims outside
the presence of the jury. Even assuming for the sake of argument
that it would have been the better practice not to use the term to
refer to the children even outside the presence of the jury because
such usage might increase the inadvertent use of the term in
front of the jury, appellant has not cited, and we are not aware of,
any authority finding such behavior to constitute misconduct.4

4 We see only two such direct references. The first was made
by Limon in a hearing pursuant to Evidence Code section 1360,
held before the jury was empaneled. Nevertheless, the
prosecutor reminded the witness not to use the word victim. The
second reference was made by the prosecutor, in summarizing J.’s
father’s interview by police, during argument before the court
and outside the presence of the jury.

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 Once these two categories are eliminated, there remain
only two uses of the word “victim” to refer directly to one of the
children in the presence of the jury. In reading the First
Amended Information to the jury, the clerk read: “in that the said
defendant did commit the following act upon victim, [J.].” This is
the only time in reading the five counts of the information that
the clerk used the word “victim” before one of the children’s
names. Appellant points out that the jury had a copy of this
document for use during deliberations. While this appears to be
true, appellant has not provided any record citation to show
whether that document was redacted or not.
The second use of the word victim was by defense counsel
in closing argument when he argued: “[J.] denied it and she lied
about it. And I’m sorry to say that. I think that she is as much a
victim in this case as anybody else. But that’s the truth. That’s
what happened. And isn’t that reasonable doubt?” In context,
defense counsel appears to be referring to J. as a victim of the
investigation and prosecution of the case.
Although appellant did not object to the clerk’s use of the
word “victim,” we will exercise our discretion to consider whether
the use was misconduct or prejudicial. It was not. There is no
basis to find prosecutorial misconduct or prejudice to appellant
from one isolated use of the word victim by the clerk, particularly
since that use occurred in connection with the reading of the
charging document in the case. The jury was well aware this
document contained allegations that the prosecution was
required to prove.
To the extent appellant contends his trial counsel was
ineffective in failing to request an order banning all uses of the
word victim, this claim fails on direct appeal. Appellant has not

14
cited any authority which would support such a broad ban, and
hence has not shown such a motion would have been successful,
let alone that he would have received a more favorable outcome
at trial. (People v. Price (1991) 1 Cal.4th 324, 387 [counsel is not
ineffective for failing to make futile or unmeritorious motions];
People v. Mai (2013) 57 Cal.4th 986, 1009 [defendant must show
that but for counsel’s deficient performance a more favorable
outcome was reasonably probable].)

C. Appellant Has Forfeited His Claim of Cruel and Unusual
Punishment
Appellant contends his sentence of 85 years to life in prison
constitutes cruel and unusual punishment in violation of the
California and United States Constitution. Appellant has
forfeited this claim by failing to adequately raise it in the trial.
His counsel simply stated that “for the record, we would object to
the imposition of consecutive sentences. [¶] . . . It’s appropriate
for me to object to that applicability based upon constitutional
grounds, including, but not limited to, the prohibition against
cruel and unusual punishment, which, I shall submit, an 85-year-
to-life sentence does, indeed, constitute cruel and unusual
punishment.”
An analysis of whether a sentence constitutes cruel and
unusual punishment “requires a ‘fact specific’ inquiry [citation],
and those facts and their import to the analysis must be
developed in the trial court. (People v. Russell (2010)
187 Cal.App.4th 981, 993 [114 Cal.Rptr.3d 668] [the claim
involves the type of issue that should be raised in trial court
because trial judge, after hearing evidence, is in a better position
to evaluate mitigating circumstances and determine their impact
on constitutionality of sentence].)” (People v. Brewer (2021)

15
65 Cal.App.5th 199, 212.) The failure to do so forfeits the claim.
(See ibid.)
Further, appellant has not even attempted to remedy this
deficiency on appeal by, for example, citing legal authority
involving similarly situated offenders (for example, first-time
adult offenders who are convicted of multiple sexual offenses
against two young victims) or by pointing to facts in the record
concerning his individual culpability (apart from his lack of prior
convictions) or the nature of the offenses.5
To the extent appellant is claiming ineffective assistance of
counsel in connection with this issue, the claim fails on direct
appeal. The lack of relevant facts in the record on appeal
precludes a showing that competent trial counsel could have had
appellant’s sentence reduced on the ground of cruel and unusual
punishment.

D. There Was No Cumulative Prejudice.
Appellant contends that even if the errors in this case are
not prejudicial when considered individually, they are when
considered cumulatively. We have found no prosecutorial
misconduct related to the used of the term “victim” and no
possible prejudice from the clerk’s single use of the word to refer
to J. Thus, there is no cumulative prejudicial effect.

5 Appellant appears to believe that the fact that the victims’
statements were not consistent somehow warrants a lesser
punishment for him. He is mistaken.

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 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J.

WILEY, J.

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