Opinion
E070658
01-14-2020
The PEOPLE, Plaintiff and Respondent, v. Hipolito Osorio MORALES, Defendant and Appellant.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Craig H. Russell, and Helen H. Hong, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II.B. and II.C.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Craig H. Russell, and Helen H. Hong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAPHAEL, J. Defendant and appellant Hipolito Osorio Morales was charged with two counts of oral copulation or sexual penetration of a child under 10 ( Pen. Code, § 288.7, subd. (b) ) and seven counts of committing a lewd or lascivious act on a child under 14 (§ 288, subd. (a)). During his trial, the trial court admitted into evidence, after jury deliberations began and without any limiting instructions, a video and transcript of Morales's police interrogation. In a pre- Miranda portion of that interrogation, an officer made statements to the effect that children had informed law enforcement that Morales had molested them; he (the officer) knew Morales was lying; he could tell Morales was lying from his experience as an investigator; and Morales committed the crimes. Although the officer testified at trial, the parties had agreed to limit questioning to the post- Miranda portion of the interrogation only. The jury found Morales guilty, and he was sentenced to 175 years to life. In the published portion of this opinion, we address Morales's contention that admission of the officer's statements from the pre- Miranda portion of the interrogation violated the confrontation clause. According to Morales, because the full interrogation was admitted only after the officer was excused and the jury began its deliberations, he was deprived of the right to confront the officer about the pre- Miranda statements described above, none of which were repeated after Morales was read his Miranda rights. We find no confrontation clause violation. In order to implicate the confrontation clause, a statement must be testimonial, meaning that it must be made with sufficient formality and with the primary purpose of creating a substitute for trial testimony. Accusatory statements made by law enforcement in an interrogation will, absent unusual circumstances, satisfy neither of these requirements.
All further undesignated statutory references are to the Penal Code.
Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
We address Morales's other contentions in the unpublished portion of this opinion. We find them unmeritorious and therefore affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2012, Morales and his wife moved into a house in Perris. A.C., her brother G.C., and their parents also lived in the house.
Morales stated during his interrogation that he and his wife have never been married, although Morales and other witnesses at trial referred to the woman as his wife.
A.C., who was born in 2007, testified that after Morales moved in, he began to touch her in inappropriate ways, such as by rubbing and touching her rear, kissing her, and pulling down her shorts. Morales would also touch and put his tongue inside A.C.'s mouth and vagina and touch her breasts underneath her clothes. Although A.C. would tell Morales to stop, he would not listen. Neither A.C.'s parents nor Morales's wife would be around when this occurred. According to A.C., Morales would promise to give A.C. money and make her a dollhouse. A.C. did not tell her parents about Morales's actions because she was afraid they would think she was "nasty" and would not love her anymore.
G.C., A.C.'s younger brother, testified that he would see Morales kiss A.C. and make her touch Morales's "private part." G.C. stated that Morales would also fondle G.C.'s penis and digitally penetrate G.C.'s anus. A.C. had observed Morales touch G.C.'s "private part" as well. A.C. did not want to tell their mother because, as with her, A.C. was afraid that their mother would think G.C. was "nasty" and no longer love him. G.C. stated that he was scared at the time and remains embarrassed about what happened.
S.M., a friend of A.C., lived next door. S.M. testified that on various occasions Morales had touched her anus and vagina, pulled down her skirt, and kissed her rear. On one occasion, S.M. observed Morales attempt to enter a closed room while A.C. was changing inside and that Morales did not stop after A.C. told him to. S.M. was scared to tell her mom about what Morales did because she was afraid that she would get in trouble for not telling her before. S.M. also stated that what Morales did was embarrassing to think about and that when she begins to remember it, she gets sad and tries to stop remembering.
On October 7, 2015, A.C. was at S.M.'s house, and the two went to A.C.'s house to get dolls. At some point after the two arrived at A.C.'s house, Morales touched A.C.'s rear over her shorts for two to three minutes. It is not clear whether Morales touched S.M. as well. According to the girls, Morales gave A.C. a handwritten letter and told her not to show anybody. The letter read: "I promise your little house in three weeks. This is a real promise because I love you so much. You are my good girl, my better girl, my favorite girl, my beautiful girl. You are so nice. You are so nice [A.C.]. Remember your little house will be delivered 10 – 23 – 15." Later that day, A.C. informed S.M.'s mother that Morales had touched her, at which point S.M.'s mother called the police.
Morales was interrogated by Deputy Sheriff Manuel Campos at the Perris police station that same day. At the beginning of the videotaped interrogation, which was conducted in Spanish and later transcribed, Campos repeatedly informed Morales that he was not under arrest. After some initial questions about Morales and his relationship to the girls and their families generally, Campos relayed A.C.'s and S.M.'s claims that Morales had been "touching them on their bodies." Morales denied the claims, but as the interrogation continued, Campos began to accuse Morales, telling him that he (Campos) knew Morales was lying about whether he molested the girls. For example, Campos variously stated that: "[Y]ou lied," "I don't believe you," "I noticed that you went from lying to telling me the truth," "I know when someone is lying to me and I know when someone is telling me the truth," "I know that you pulled down those – those girls' pants," "I already know that you did it," "these girls – all boys and girls speak the truth," and "I'm telling you right now that I know the truth." At one point, Campos stated that he could tell, based on professional experience, that he knew Morales was lying: "I've been almost – almost 20 – 20 years doing this job. [¶] ... [¶] And I have spoken to a lot of people, and I can look at you now and I can tell you that I know that you're not telling me the truth." Campos also stated that there was additional evidence that Campos would not reveal to Morales: "When – when all of this goes to court they'll know that you're lying to me. Because I also have proof I'm not showing you. Okay?" In addition, Campos relayed statements from A.C. and S.M. about how Morales had touched them, such as Campos's statement that "one girl ... says that you pulled down her – you pulled down her pants and that you – that you gave her a kiss down there." In response to Campos's questioning, Morales admitted that he had touched A.C. and S.M., although not sexually, and that he wrote the letter to A.C.
At the time, neither the parents nor law enforcement appeared to know whether G.C. had been molested. G.C. did not disclose what Morales had done to him until some weeks later.
At a point in the interrogation after Campos made all of the above statements, Campos arrested Morales and read him his Miranda rights. (See Miranda v. Arizona, supra , 384 U.S. 436, 86 S.Ct. 1602.) The interrogation then continued with Morales denying that he ever touched A.C. or S.M. sexually.
At trial, both Morales and Campos testified, as did the three children and a handful of other witnesses. Before either Morales or Campos took the stand, the People indicated on the record that they intended "to only cover the portions of [Morales's interrogation] that was discussed with [Morales] post- Miranda. " Campos testified before Morales, and the questions focused only on the post- Miranda portion of the interrogation. When Morales later took the stand, however, he testified that he had lied to Campos during the interrogation about touching the girls and writing the letter, saying he did so because he felt confused, scared, and threatened by Campos. Morales stated that he lied to Campos because he did not know what Campos was accusing him of, because Campos was threatening him by asking "strong" questions and standing "too close," and because he (Morales) was raised in a small town in Mexico "where there's a lot of abuse in authority" and was therefore afraid of what Campos might do. To the People, Morales had opened the door to the entire interrogation by characterizing it as coercive. However, the People did not seek to offer the full interrogation into evidence immediately following Morales's testimony. Rather, after both sides rested their case and delivered closing arguments, and after the jury was given instructions and retired to deliberate, the People, in a final "housekeeping" discussion with the trial court, requested that the full interrogation be admitted into evidence. Morales objected, contending that admission of the full interrogation constituted "evidence that is presented to the jury after the close of evidence" and that admission would violate his Sixth Amendment right to confront witnesses against him. The trial court disagreed and allowed the full interrogation to go to the jury.
The jury found Morales guilty on all counts. At sentencing, the trial court sentenced Morales to a term of 175 years to life. The trial court also imposed $40,000 in direct victim restitution ($25,000 to A.C., $10,000 to G.C., and $5,000 to S.M.), among other fines and fees. The trial court arrived at $40,000 by awarding $5,000 to each child for each year of abuse they suffered. The trial court noted that the People had requested $50,000 per year per child pursuant to People v. Smith (2011) 198 Cal.App.4th 415, 129 Cal.Rptr.3d 910, which had upheld such a formula. After discussing the issue with the parties, however, the trial court reduced the amount to $5,000 per year per child. The trial court stated: "These children have suffered greatly. Their innocence has been taken away. They've witnessed things that no child should ever witness. It's going to cause, I'm sure, lasting damage, and they need all the help that they can get for their recovery, so these are very modest figures when you consider the gravity of what's been done to them, so that will be imposed."
II. ANALYSIS
A. Confrontation Clause
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...." This confrontation clause is made applicable to the states via the Fourteenth Amendment. ( Pointer v. Texas (1965) 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923.)
In Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ( Crawford ), the United States Supreme Court held that the confrontation clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." ( Id. at pp. 53-54, 124 S.Ct. 1354.) Only statements that are testimonial "cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause." ( Davis v. Washington (2006) 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224.) Citing Webster's, Crawford defined "testimony" as " ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ " ( Crawford, supra , at p. 51, 124 S.Ct. 1354.) The court, however, declined to "spell out a comprehensive definition" of when a statement is or is not testimonial. ( Id. at p. 68, 124 S.Ct. 1354.)
Here, Campos did appear at trial. Nevertheless, Morales contends that the fact that the full interrogation was admitted into evidence as late as it was effectively made Campos "a witness who did not appear at trial" (Crawford, supra , 541 U.S. at p. 54, 124 S.Ct. 1354 ) with regard to the preMiranda statements for confrontation clause purposes. We agree. Contrary to what the People argue, the mere fact that Campos testified at trial does not render the confrontation clause inapplicable here. (See United States v. Wilmore (9th Cir. 2004) 381 F.3d 868, 872, fn. 6 [finding confrontation clause violation under Crawford in case where "it was only after the evidence was admitted that [the witness] became unavailable ...."].) Because Campos was not recalled and cross-examined after the purportedly testimonial statements were offered into evidence, we conclude that, for confrontation clause purposes here, he was not a witness who appeared at trial.
Since then, our Supreme Court has concluded that "a statement is testimonial when two critical components are present." ( People v. Lopez (2012) 55 Cal.4th 569, 581, 147 Cal.Rptr.3d 559, 286 P.3d 469 ( Lopez ); see also People v. Dungo (2012) 55 Cal.4th 608, 619, 147 Cal.Rptr.3d 527, 286 P.3d 442.)
"First, to be testimonial the out-of-court statement must have been made with some degree of formality or solemnity." ( Lopez, supra , 55 Cal.4th at p. 581, 147 Cal.Rptr.3d 559, 286 P.3d 469.) For instance, in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314, the United States Supreme Court held that " ‘certificates of analysis’ showing the results of ... forensic analysis" were testimonial because they were " ‘declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths’ " and were therefore "incontrovertibly a ‘ "solemn declaration or affirmation made for the purpose of establishing or proving some fact." ’ " ( Id. at pp. 307-308, 310, 129 S.Ct. 2527.) Similarly, in Bullcoming v. New Mexico (2011) 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610, the court held that "the formalities attending the ‘report of blood alcohol analysis’ " at issue were "more than adequate to qualify [the assigned forensic analyst's] assertions as testimonial" where the report was " ‘formalized’ in a signed document." ( Id. at p. 665, 131 S.Ct. 2705.) Conversely, in Lopez , where no one "signed, certified, or swore to the truth of the contents" of a report, our Supreme Court held that the report was "not prepared with the formality required ... for testimonial statements." ( Lopez, supra , 55 Cal.4th at p. 584, 147 Cal.Rptr.3d 559, 286 P.3d 469 ; see also People v. Sanchez (2016) 63 Cal.4th 665, 696-697, 204 Cal.Rptr.3d 102, 374 P.3d 320 [notice that was "part of an official police form containing the officer's sworn attestation that he issued the notice on a given date and that it accurately reflected the attendant circumstances, including defendant's statements," was sufficiently formal].)
Although formality is required, the precise "degree of formality ... remains a subject of dispute in the United States Supreme Court." (Lopez, supra , 55 Cal.4th at p. 582, 147 Cal.Rptr.3d 559, 286 P.3d 469.)
Second, a statement is testimonial if it was "given with the ‘primary purpose of creating an out-of-court substitute for trial testimony’ " or "made with the primary purpose of creating evidence for [the defendant's] prosecution." ( Ohio v. Clark (2015) 576 U.S. –––– [135 S.Ct. 2173, 2181, 2183] 192 L.Ed.2d 306 ( Clark ); see also People v. Rangel (2016) 62 Cal.4th 1192, 1214-1215, 1232, 200 Cal.Rptr.3d 265, 367 P.3d 649.) In conducting a primary purpose analysis, courts consider both whom the statement was made by as well as whom it was made to. "Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers." ( Clark, supra , at p. 2182, 135 S.Ct. 2173, italics added; see also ibid. ["Statements by very young children will rarely, if ever, implicate the Confrontation Clause."], italics added; Giles v. California (2008) 554 U.S. 353, 376, 128 S.Ct. 2678, 171 L.Ed.2d 488 ["Statements to friends and neighbors about [an abused woman's] abuse and intimidation and statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules ...."].) Moreover, in considering primary purpose, courts must "objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties." ( Michigan v. Bryant (2011) 562 U.S. 344, 359, 131 S.Ct. 1143, 179 L.Ed.2d 93.) The primary purpose "must be objectively assessed from the perspective of the parties to the interrogation at the time, not with the benefit of hindsight." ( Id. at p. 361, fn. 8, 131 S.Ct. 1143.)
Of course, a testimonial statement must be offered to the jury for its truth: The confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." ( Crawford, supra , 541 U.S. at p. 59, fn. 9, 124 S.Ct. 1354, citing Tennessee v. Street (1985) 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425.)
Thus, to summarize, in order for the confrontation clause's bar to apply, a statement must (1) be offered for its truth, (2) have a sufficient degree of formality, and (3) be made with the primary purpose of at least "creating evidence for [the defendant's] prosecution" or " ‘creating an out-of-court substitute for trial testimony.’ " ( Clark, supra , 576 U.S. at p. ––––, [135 S.Ct. at pp. 2181, 2183].) Here, Campos's pre- Miranda statements lacked sufficient formality and were not made for the primary purpose of creating evidence for Morales's prosecution or an out-of-court substitute for trial testimony. As a result, the confrontation clause does not bar their admission.
The People contend that Campos's pre- Miranda statements were not offered for their truth. Importantly, although the People sought at trial to introduce the full interrogation to rebut Morales's coercion claim, the jury was never told that it may not consider the statements for their truth. In situations such as this—where evidence challenged on confrontation grounds has been admitted for a not-for-the-truth purpose but the jury is never instructed as such—the controlling case law appears to be in tension. In People v. Hopson (2017) 3 Cal.5th 424, 219 Cal.Rptr.3d 717, 396 P.3d 1054, our Supreme Court considered whether an accomplice's "un-cross-examined confession" was offered for its truth. ( Id. at p. 432, 219 Cal.Rptr.3d 717, 396 P.3d 1054.) In holding that it was, and that its use therefore violated the confrontation clause ( id. at p. 443, 219 Cal.Rptr.3d 717, 396 P.3d 1054 ), the court relied in part on the "fundamental" fact that "the jury was never informed of the limited nonhearsay purpose for which [the accomplice's] confession was ostensibly admitted" ( id. at p. 433, 219 Cal.Rptr.3d 717, 396 P.3d 1054 ; see also id. at p. 430, 219 Cal.Rptr.3d 717, 396 P.3d 1054 ["defense counsel did not request a limiting instruction, and none was given"] ). More recently, however, our Supreme Court found the lack of a limiting instruction insignificant in People v. Bell (2019) 7 Cal.5th 70, 246 Cal.Rptr.3d 527, 439 P.3d 1102. In Bell , the court held that the statement in question raised no confrontation clause concerns because it was not offered for its truth. ( Id. at p. 100, 246 Cal.Rptr.3d 527, 439 P.3d 1102.) The statement was admissible in part to rebut the defendant's claim, first raised during his case-in-chief, that law enforcement's forensic "investigation was sloppy." ( Ibid. ) "Accordingly, there was no confrontation clause violation" even though no limiting instruction was given. ( Ibid. ) The court noted that "[a]lthough a limiting instruction was not given, defendant is in no position to complain. He failed to make a hearsay objection and, despite the court's invitation, failed to propose a limiting instruction." ( Ibid. )
However, we need not attempt to distinguish either case or make a choice between the two (see Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456, 20 Cal.Rptr. 321, 369 P.2d 937 ) because whether or not Campos's pre- Miranda statements were offered for their truth, they fell short of the formality required to deem them testimonial. Lopez noted that the "degree of formality required ... remains a subject of dispute in the United States Supreme Court" ( Lopez, supra , 55 Cal.4th at p. 582, 147 Cal.Rptr.3d 559, 286 P.3d 469 ), but an interrogating officer's statements would fall short of any articulated standard under any normal circumstances. Unlike in Melendez-Diaz , Campos's statements were not " ‘sworn to by the declarant before an officer authorized to administer oaths.’ " ( Melendez-Diaz v. Massachusetts, supra , 557 U.S. at p. 310, 129 S.Ct. 2527 ; see also id. at p. 308, 129 S.Ct. 2527.) And unlike in either Melendez-Diaz or Bullcoming , Campos's statements were not written down or formalized in any document signed by him. ( Melendez-Diaz v. Massachusetts, supra , at pp. 308, 310, 129 S.Ct. 2527 ; Bullcoming v. New Mexico, supra , 564 U.S. at pp. 653, 665, 131 S.Ct. 2705 ; see also People v. Sanchez, supra , 63 Cal.4th at pp. 696-697, 204 Cal.Rptr.3d 102, 374 P.3d 320 [notice that was part of form containing "officer's sworn attestation" that defendant's recorded statements were accurate was sufficiently formal].) Rather, like Lopez , where no one "signed, certified, or swore to the truth of the contents" of a report, Campos's statements lacked the formality required to invoke Morales's confrontation right.
Nor are Campos's pre- Miranda statements, or generally any statements made by law enforcement in questioning a witness, made with the necessary primary purpose. Statements by law enforcement during an interrogation are rarely, if ever, meant to function as a substitute for trial testimony, because an officer would not expect that such statements be used as evidence at trial. Whatever Campos's subjective intentions could have been, the objective circumstances surrounding Morales's interrogation show that only Morales's statements were intended to create evidence for his prosecution. (See Michigan v. Bryant, supra , 562 U.S. at pp. 360-361, fn. 8, 131 S.Ct. 1143.) Moreover, the fact that the statement was made to Morales, who is not a law enforcement officer, is meaningful, as "such statements are much less likely to be testimonial than statements to law enforcement officers." ( Clark, supra , 576 U.S. at p. ––––, , italics added.)
In one sense, statements made by an interrogating officer are often made for the purpose of "creating evidence for [the defendant's] prosecution." ( Clark, supra , 576 U.S. at p. ––––, .) A question or statement in an interrogation, for instance, is generally intended to elicit a response, and such response can constitute evidence. Applying the primary purpose test in this fashion, however, would sweep too broadly, as it would make everything uttered by law enforcement in questioning a witness susceptible to confrontation clause challenges. The cases, if anything, point the opposite way. (See, e.g., Davis v. Washington, supra , 547 U.S. at p. 822, fn. 1, 126 S.Ct. 2266 ["And of course even when interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate."].)
In short, none of Campos's statements made during the pre- Miranda portion of Morales's interrogation were testimonial, no matter how accusatory they appeared. B.-C.
Campos's statements relaying what A.C. and G.C. told law enforcement raise no confrontation clause violation for the additional reason that Morales had an opportunity to, and did, cross-examine the children about molestation at trial.
See footnote *, ante .
III. DISPOSITION
The judgment of conviction is affirmed.
We concur:
CODRINGTON, Acting P. J.
SLOUGH, J.