2024-10

People v. Mendoza CA5 ( 2024 )

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Filed 10/23/24 P. v. Mendoza 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085124
Plaintiff and Respondent, (Super. Ct. No. DF014553A)
v.
ORDER MODIFYING OPINION AND
TOMAS TIRADO MENDOZA, DENYING REQUEST FOR
PUBLICATION
Defendant and Appellant. [No Change in Judgment]
THE COURT:
It is hereby ordered that the opinion filed herein on October 14, 2024, be modified
as follows:
1. At the top of page 3, the sentence: “Alternatively, we find that any
incriminating statements made by Mendoza, including his apology letter to the victim,
were made involuntarily” is deleted in its entirety.
2. In the first full sentence, on page 47, the word “to” is added between “and
counsel” in the sentence beginning “This false promise …” so the sentence now reads:
This false promise of confidentiality was the antithesis of the Miranda
warnings designed to protect the defendant’s rights against self–
incrimination and to counsel.
There is no change in the judgment. Except for the modifications set forth, the
opinion previously filed remains unchanged.
The request for publication of the opinion filed on October 16, 2024, is hereby
denied. The opinion does not establish a new rule of law, nor does it meet any of the
other criteria set forth in rule 8.1105(c) of the California Rules of Court.
In compliance with rule 8.1120(b) of the California Rules of Court, the
Clerk/Executive Officer of this court shall transmit copies of the request for publication,
the opinion, and this order to the Supreme Court.
FRANSON, J.
WE CONCUR:
DETJEN, Acting P. J.
PEÑA, J.
2.
Filed 10/14/24 P, v. Mendoza CA5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085124
Plaintiff and Respondent,
(Super. Ct. No. DF014553A)
v.
TOMAS TIRADO MENDOZA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
James Bisnow, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell and Kimberley A. Donohue, Assistant Attorneys General, Rachelle A.
Newcomb and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Tomas Tirado Mendoza was convicted in September 2022 by a jury of molesting
his 14 year old stepdaughter, N.C., by continuous sexual abuse of a child under the age of
14 (Pen. Code, § 288.5, subd. (a); count one);1 committing a lewd and lascivious act on a
child under age 14 (§ 288, subd. (a), count two); and oral copulation or sexual penetration
of a child 10 years old or younger (§ 288.7, subd. (b), count three). The jury also found
true enhancement allegations on each count that the victim was particularly vulnerable
(Cal. Rules of Court, rule 4.421(a)(3)) and that Mendoza violated a position of trust (Cal.
Rules of Court, rule 4.421(a)(11)).
Mendoza was sentenced to an indeterminate term of 15 years to life on count three
and the midterm of six years on count two, to be served consecutively. The court stayed
Mendoza’s sentence of 12 years on count one. Mendoza was ordered to pay fines and
fees not at issue on appeal and to register as a sex offender pursuant to section 290.
Mendoza was questioned at a sheriff’s substation without receiving any warnings
pursuant to Miranda v. Arizona (1966)

384 U.S. 436

(Miranda). The trial court denied
Mendoza’s motion to suppress incriminatory statements and an apology letter written to
the victim at the conclusion of questioning. The court found Mendoza was not in custody
and, therefore, the officer did not need to give Miranda advisements. The court further
found Mendoza voluntarily made the incriminatory statements and wrote the apology
letter.
During questioning, the deputy falsely promised Mendoza that everything he said
would be confidential, elaborating: “I’m not going to tell your wife. I’m not going to tell
some lady out there; the judge, nobody. It just stays with you and me.” As we explain,
Mendoza’s initial encounter and conversation with Deputy Garza appeared to be
voluntary and Mendoza was not initially under arrest. But as questioning grew more
intense, however, a reasonable person in Mendoza’s position would not have felt free to
leave the interview and would have felt he or she was in custody undergoing an
1 Unless otherwise specified, all statutory references are to the Penal Code.
2.
interrogation.2 Under these circumstances, the deputy was obligated to advise the
defendant of his Miranda rights. It was therefore error for the trial court to deny
Mendoza’s motion to suppress his statements to Garza and his apology letter to the
victim.3 Alternatively, we find that any incriminating statements made by Mendoza,
including his apology letter to the victim, were made involuntarily. The error was
prejudicial. The judgment is reversed, and the case remanded for a new trial.
I. THE INTERVIEW
A. Background Facts
As we explain in greater detail below, Mendoza and C.M., N.C.’s mother, had
lived together for 10 years and had three children together. Mother had three children
from a previous relationship, including N.C.. On June 29, 2019, 14-year-old N.C. sent her
mother a text message stating that Mendoza was molesting her. C.M. reported the
incident shortly thereafter, and the Kern County Sheriff’s Office began its investigation
on July 5, 2019. Mother and the children moved to Los Angeles on July 4 and mother
forbade Mendoza from contacting the children, including N.C. Senior Deputy Phillip
Garza first contacted Mendoza by phone, saying he wanted to speak to him and asked if
he could come to the Delano substation to talk. Mendoza came to Delano substation on
August 1, 2019, where Deputy Garza questioned Mendoza for two hours in Spanish in his
office.
2 In our presentation of the facts, and later in our legal analysis, we use the terms
interview and questioning interchangeably. We also use these two terms in our legal
analysis until it becomes clear that Garza’s questioning of Mendoza became a custodial
interrogation.
3 The parties originally briefed only whether Mendoza’s inculpatory statements
were made voluntarily. The parties have filed supplemental briefing on whether
Mendoza was in custody during questioning and whether Miranda was violated. They
have also filed supplemental briefing on whether Mendoza is procedurally barred on
appeal from challenging his statements as being involuntarily made.
3.
B. Preliminary Questioning
The interview began with exchanging first names. Garza directed Mendoza to his
office, which was cooler, rather than the interview room. Garza noted the interview room
was hot and it was “where we put the suspects, not you.” Garza asked Mendoza to leave
the door open.4 Garza told Mendoza he was not under arrest, asked if Mendoza
understood him, and added that “you’re not in trouble.” Garza reiterated that the door
was open, Mendoza was not a suspect, he could walk out when he wanted to, and he was
“not here by force.” Garza added that Mendoza was not handcuffed, and Mendoza was
there voluntarily. Garza thanked Mendoza for his cooperation.
Mendoza mentioned he had come looking for Garza a week earlier. Garza
explained he was away, just returned the day before, and that he was notified Mendoza
tried to contact him. Garza told Mendoza: “I wanted to talk to you as soon as possible to
get this done. [¶] … [¶] To go back to normal life. I know it is very difficult.” Garza
asked Mendoza for his identification and the ages of the children living at home. Garza
asked other preliminary questions about the addresses the family had lived and how long
he had been with his wife. Later in the interview, Mendoza explained that he was a
supervisor of people working fields of grapes. His position was higher than a crew
foreman. Mendoza said he was in charge of groups of foremen.
Mendoza said he was thinking of cooperating because he knew he had not done
“bad.” Garza explained: “Allegations are true and many times are not. I already have my
thoughts, and that’s why we’re talking like this, and not like in the other rooms, not like
the other ones who are guilty of something. Do you understand me?” Mendoza replied,
“Yes. Yes, I understand.” Garza added, “It’s quite different over there.”
4 Feigning difficulty with Spanish, Garza asked Mendoza whether he had the
conjugation correct for the word “open.”
4.
Garza elaborated on his comments that he thought Mendoza had done nothing
wrong. “I don’t think you’ve done anything wrong. Just so that you know where I’m
coming from. I don’t believe you’ve done anything wrong. But I have to do the
investigation and do it right, and have to come to a conclusion. [¶] … [¶] … Conclude
it, just to talk to you.”
Garza asked Mendoza to say why he was there. Mendoza explained it was
because his stepdaughter, N.C., told her mother that Mendoza went into her bedroom and
touched her parts. When his wife told him about it, Mendoza was at work and went
home to talk to N.C. to clarify the problem. Mendoza was worried the allegation would
get him in trouble, but N.C. did not want to talk and stayed away from him. After four
days, N.C. left home and Mendoza had not talked to her since then. Mendoza sent a text
to N.C. who replied that they had filed a report and that he would be investigated.
Mendoza said there was no problem in investigating him. He would cooperate
because he wanted “to get all this fixed.” Mendoza explained that his wife did not want
to listen to him. Mendoza understood the allegation to be that he went into N.C.’s
bedroom and touched her. The week before, N.C. said somebody went up with her, she
was screaming, but she lost her voice.
Mendoza told Garza that N.C. had psychological issues and was seeing a school
psychologist. N.C. had cut her own hair while taking a shower. Mendoza told his wife
N.C. needed help with a psychologist but the wife did not listen to him. There were
apparently times N.C. tried to take her own life. The psychologist told N.C.’s mother
they should be more careful with N.C. and pay more attention to her.
C. Garza’s Questioning Becomes More Confrontational
Garza asked about the reasons for N.C.’s psychological issues. Mendoza
explained that after getting help from the school psychologist, N.C. began to behave more
normally. Before, if anyone said something to N.C., she would turn around and not
answer. Garza said he found it strange that a girl like N.C. would come up with these
5.
things out of nothing. Garza asked Mendoza what had happened at home and why all of
the sudden did N.C. say Mendoza was doing this. Garza suggested that children and
adults see and interpret things differently.
Mendoza explained that N.C. called him and told him her mother wanted to send
her to Mexico, but she wanted to come back home to live together as a family. N.C.
asked Mendoza to apologize for what he had done. Mendoza asked N.C. why he would
apologize for something he did not do. Mendoza said he told N.C. it would be better to
discuss this with her mother and hung up.
Garza told Mendoza that N.C. said Mendoza had touched her. Mendoza asked
where, outside or inside the house? Garza replied that N.C. reported the touching
occurred inside the house in her room. Garza asked Mendoza if he had gone inside
N.C.’s room. Mendoza said he had, but only with his wife present to turn off N.C.’s
television.
Garza told Mendoza he had a child with his wife and stepchildren and knew it was
difficult. Garza challenged Mendoza’s claim that he never went into N.C.’s room after
living in the same house for seven years. Mendoza maintained that he only went into
N.C.’s room when his wife was there, not when N.C. was by herself.
Garza asked Mendoza if he knew when the allegations started. Mendoza said on
June 29th and that everyone left the home on July 4th. Garza reassured Mendoza saying:
“I’ve spoken with your wife and the kids. I think everything is going to be okay, with
time; I think there’s a chance. But to get it all good, all we need is the truth about
everything. On any investigation. This and all. The truth about everything. My job is
just to investigate, and to see what the truth is. Sometimes the truth is like you and I
might see something, and a child might see something and the truth is they are different
things. Because we see and interpret things differently.”
Garza questioned what had happened in Mendoza’s house that N.C. interpreted in
a bad way. Mendoza said N.C. may have misinterpreted his intentions because he and his
6.
wife were trying to get closer to N.C. at the psychologist’s suggestion. Mendoza said he
forcibly tried to hug N.C. and he thought this was what N.C. misinterpreted. Garza asked
how Mendoza felt about his stepdaughter. Mendoza said he loved her the same as his
own kids. He kissed his daughter on the cheek, the lips, and her head but could not do
this with N.C. Replying to a question from Garza, Mendoza said he had kissed N.C. on
the cheek and the forehead in front of her mom, never on the lips.
Garza asked if Mendoza kissed N.C. goodnight. Mendoza said he would only say
goodnight to N.C. because N.C would not allow him to kiss her and will not let him talk
to her. She would not allow Mendoza to fix her blanket. Once when his wife was
making tortillas, N.C. was passing by when Mendoza hugged her, she yelled to her
mother that Mendoza was abusing her. Mendoza and his wife told N.C. to be careful
with those words because they could be taken as an accusation.
When Garza asked Mendoza if he went inside N.C.’s bedroom to say goodnight
and fix her blanket, Garza said he only opened the top door, almost never went into the
room when N.C. was by herself, and either way his wife was nearby.5 Mendoza placed a
lock on N.C.’s bedroom door so there would not be any more problems. Garza
confronted Mendoza: “There is something going on, for these allegations [to] exist.”
Garza added: “I don’t think a child would come up with this, like that in one day.
Something is happening, or was happening.” Mendoza responded that N.C. may have
“misinterpreted the actions one does sometimes” because his wife was always there.
Garza asked Mendoza to tell him about going with N.C. in his truck to get a
flavored icy. Mendoza said they got the icy drinks and went back home. Mendoza added
N.C. was saying that he took her into a field and tried to touch her. They lived in the
fields so they passed by them and stopped in front of the house to eat their icy drinks.
Garza asked Mendoza how he drove and what happened inside the truck. Garza recalled
5 Mendoza explained that N.C.’s room had a top and bottom door.
7.
that his own grandfather would affectionately have his hand on Garza’s head, shoulder, or
leg. He also asked what N.C. could have misinterpreted and whether Mendoza drove
with N.C. “affectionately.” Mendoza said he always drove with both hands on the
steering wheel unless he needed to grab drinking water or a soda.
Garza pressed Mendoza about how many times he drove with his left hand on the
steering wheel and his “right hand there on her shoulder, head, what do you call it? The
leg right here, like a dad who loves [his] daughter?” Mendoza denied doing anything
with his right hand except to grab his drink. Garza pressed the point. Mendoza said he
always used both of his hands while driving.
Garza said he had spoken to N.C., and she “tells me a lot of things.” Mendoza
replied that N.C.’s mom believes her, but he did not understand why N.C. was saying the
things she was saying. Garza asked Mendoza if he drank. He then suggested that drunk
or not, things sometimes happen and: “[N.C.] has told me very different stories from
what you’re telling me. But very similar also.”
Garza continued: “At the end of all, we just want the truth, and like I am
explaining to you, things happen. I know people are scared.” Mendoza replied: “No.
Afraid.” “Afraid, like um. If you touch a child, you’re going to go to jail.” Garza added
“And I tell people, there are times that yes. But there are also times that no.” Garza
explained men talk and lie to him, denying allegations. “And then we do the
investigations, we get the evidence, we get the DNA evidence, we get the biological
evidence, other proof, witnesses, videos, anything. There are many ways to — ”
Mendoza finished Garza’s sentence with there are, “Many ways to pull the truth out.”
Garza told Mendoza that he had presented the evidence and thanked Mendoza for
telling him the truth. “And do you know what I tell them? You’re not going to jail yet.
Do you know why? Because there are times that a man touches a child, but he had good
intentions, and children misinterpreted it.” Mendoza agreed.
8.
Garza used himself as an example. Going into his daughter’s room, grabbing a
blanket to cover her better, she moves, and his hand touches a part where it should not.
Garza asked whether this would be his fault. Mendoza said it would not if Garza’s
intentions were not bad. Garza replied, “Exactly.” Garza added that if the girl wakes up
and sees his hand, she would think badly when his intention is just to cover her.
Garza added, “Accidents happen.” “So it is possible that a man touches a girl like
that, but it is not illegal. Because the intentions are not there.” Mendoza echoed it was
all “about the intentions one has.” Garza replied: “Yes. Exactly… I’m speaking with
you, and I’m speaking with you in a different way from the other suspects.” Garza
suggested Mendoza’s conduct was not criminal. “Because with you I do know what
things have happened, but I don’t think they are criminal. I want you to think about that;
okay?”
Garza encouraged Mendoza to continue talking. “But I do think that things have
happened. I just want—I’m going to tell you. I only want the truth. What has happened.
Where have you touched her? Why? What were the circumstances your hand was there
near her part. Just to … to document it.”
Mendoza mentioned a time when the TV controller was under N.C. with the
television on and he pulled the controller out. Mendoza was not sure if he touched N.C.’s
part because she woke up and asked him what he was doing. N.C. was angry with
Mendoza. This happened in her bedroom. This incident happened three weeks or a
month earlier. Mendoza said he only went in N.C.’s room to turn off her television. He
went in the room during the day if he needed something but his wife would be there.
Mendoza said he asked his wife why N.C. had so much anger toward him. His
wife told him it was because he sometimes looked at N.C. like a woman, not like his
daughter. Mendoza said he knew N.C. was a young woman, but he loved her in the same
way as his children. Garza and Mendoza talked about teenage boys and girls going
through hormonal changes.
9.
Garza told Mendoza not to be afraid. Mendoza replied he was worried because it
was not a small problem. Garza assured Mendoza that there were instances,
“[s]ometimes things happen that, circumstances where a man touches a woman and it is
not criminal. Okay? And in the wrong places.” As an example, Garza mentioned
checking his five-year-old child’s front part for a rash. Garza asked if he had committed
a crime. Mendoza replied, “No, because you’re helping.” Garza said, “Exactly, My
intentions are not criminal.” When Mendoza used the example of changing a diaper,
Garza explained changing it was not a crime.
After more discourse about changing children’s diapers, Garza veered the
conversation back to N.C., suggesting Mendoza touched N.C. “I do think there have
been instances where you touch her. I want to tell you that when a man touches a girl,
whether on the skin or the clothing, you leave biologic evidence. You leave DNA
evidence.” “It gets left on the clothes and in those specific parts. Do you understand?”
Mendoza said, “Yes.”
Garza said: “What I’m asking here—and just tell me your own way—I just want
the truth. Okay?” “What has happened, that you’ve touched [N.C.] on those parts? And
if it was an accident—.” Mendoza replied, “I don’t know.” Garza asked Mendoza to just
tell him if it was on purpose, if he was not drunk, if he was in depression, if he thought it
was his other daughter.
Mendoza responded: “No, no. Not that.” Garza asked Mendoza if he was a man
in heat, like he just wanted sex. Garza said he was not sure of the word in Spanish.
Mendoza said: “Yes. But I do understand. No, what happens, maybe if I have touched
her in parts like that, I have never done it, in other words, wanting to touch her.”
A lengthy discussion followed about a time N.C. let herself fall to the floor a few
days before because Mendoza hugged or attempted to hug her. Mendoza said he stuck
his hand out so she would not fall and he “did touch her like that, but it’s not that I
wanted to do it.” Mendoza said he touched N.C. in the middle on her vagina. This
10.
happened at the entrance to N.C.’s bedroom in the hallway as Mendoza was passing by,
close to the open door. His other daughter was standing next to her bed. When Garza
asked him if anything else happened, Mendoza said “[n]othing.”
The conversation turned to custody issues concerning whether Mendoza would get
to see his children. Garza told Mendoza he could see his kids and that a relative cannot
hide them. Garza said he believed a man had a right to go on vacation with his kids.
Garza suggested Mendoza work together with his wife. Mendoza replied when he spoke
to his wife, “she told me that you guys said I cannot see them.” Garza said he thought
“[m]aybe she misinterpreted something.” Garza said he would speak to Mendoza’s wife
because Mendoza had a right to see his kids and there was no restraining order. Garza
reiterated he would speak to Mendoza’s wife.
Garza checked to see if the front secretary had left because “I’m going to speak
some things I have to—nobody should hear this.” Garza explained that he had spoken
with N.C., mentioning their prior comments about “the age of the hormones.” Garza
added: “So she tells me that sometimes she lets you touch her. She lets you.” “Just hear
me out. That it’s her fault. And when that happens, then an adult, like a man—she looks
almost like an adult. You know what I mean? That she is well, what’s the word? She is
well—” Mendoza finished Garza’s sentencing saying, “Formed.”
Garza suggested that a man is going to falter and “what’s the word?” “Let me
think. Where’s the dictionary? Consen[s]ual. Do you understand? Consen[s]ual. And if
it is consen[s]ual, you know, when it’s something consen[s]ual, like a consen[s]ual
couple.” Mendoza used the word aware. Garza replied: “Aware. When you’ve given
permission.” Like when a man has sexual relations with a spouse. Garza asked if
Mendoza was having consensual sex. Mendoza appeared to ask Garza if Garza meant
having sex consciously. Garza and Mendoza repeated the word “[c]onsciously” after one
another. Garza said many people think it is wrong, and although he had his own
thoughts, he does not use them.
11.
D. Garza’s Confidentiality Promise and Mendoza’s Confession
Garza began his promise of confidentiality with a short speech:
“I work in law; I make decisions from this book; California Penal
Code. I work in what this book, Penal Code, tells me. What is legal and
what is not legal. And there’s a very fine line; this is legal and this is not
legal. Here, you go to jail, go to jail, what you do, you know? A, B, C.
“But there there are circumstances in which you do not go to jail.”
Mendoza said, or asked: “There are clauses.” Garza continued with his first
promise of confidentiality:
“Clauses. And in all that’s happened, you and [N.C.], I do think that
things have happened, but I don’t think they are criminal. But I just want
the truth. I want you to understand that everything you tell me is
confidential. Is that how you say it?”
Mendoza briefly replied: “Yes. Confidential.” Garza elaborated his promise of
confidentiality a second time:
“Confidential. I’m not going to tell your wife. I’m not going to tell
some lady out there; the judge, nobody. It just stays with you and me.
Because it is me, who makes the decisions, or better, I’m the one who
makes the conclusions if an act is criminal or not criminal. And the rules
and conclusions that I make, are here in the Penal Code.
Mendoza said: “Yes. That is to say the book.” Garza replied:
“Yes. In the book. To make the conclusions better, I need the truth. Okay?
I am here because I am not talking to you like another suspect in another
room; you’re not cuffed, and you do not have to tell me anything. Do you
understand me?”
Garza noted that Mendoza was cooperating and thanked him, adding that he
needed the truth “because there are DNA biological evidence and all that.” Garza
continued: “[t]o make preferable conclusions, best ones, most clear that I have to make, I
need the truth. Because if you tell me one thing, and it’s contrary to the evidence—”
After Mendoza replied affirmatively, Garza said, “What do you think that I am going to
12.
be thinking about you.” Mendoza said that they were lies. Garza added: “Yes.
Sometimes the truth is very hard. Sometimes the truth is—we’re embarrassed.”
Garza confided to Mendoza that he had made mistakes in life and was thankful
they were not criminal. But, he had regrets and things he did not want to remember.
Mendoza said there were things he did not want to remember. Garza agreed, adding: “So
like you and [N.C.]; I need the truth. If they are [u]; if they’re wrong, it doesn’t matter. I
just want the truth. [¶] To make my conclusions.” At first, Mendoza said he never
touched N.C. without clothes.
Initially, Mendoza only reiterated his accidental touching of N.C. He added that
he talked to N.C. about her period, trying to explain to her what was going to happen.
Mendoza thought N.C. thought the wrong thing and “it all piled up.” Garza went over
the falling incident where Mendoza said he accidentally touched N.C. on the vagina.
Garza asked if there was evidence Mendoza touched the area of N.C.’s vagina, what
would happen if Garza had more than one part of N.C.’s clothing and there was more
than one time Mendoza touched N.C. there. Mendoza replied he only hugged N.C.
Garza asked Mendoza if he hugged someone how was his hand by N.C.’s vagina?
Garza asked about Mendoza going into N.C.’s room at night and anything conscious was
happening with Mendoza and N.C. Garza said: “Conscious. Just tell me that. Tell me
the truth.” Garza added that he needed to know the truth, “[i]f it happened once, I need to
know. If it happened twice.” Mendoza replied: “It did happen once.” Mendoza
admitted going into N.C.’s room while her blanket was off. She was wearing clothing,
but he touched her and “put my hands there” on her “part.”
Mendoza still called it an accident. Garza said he just needed the truth, thanked
Mendoza for telling him, and told Mendoza there was no one else there but them. Garza
asked Mendoza what he was thinking at that moment. Mendoza said he was not thinking
anything, that it all happened “really quickly.” Garza suggested Mendoza was in heat,
like animals, or that he was aroused. Garza asked if Mendoza was in heat, like animals
13.
can be, and wanted sex. Observing that N.C. was a well-formed woman and not a little
girl, Garza asked Mendoza if he had sexual thoughts about her. Mendoza said he did not
have sexual thoughts.
Garza asked about the time N.C. told him that Mendoza touched her knee. Garza
asked if Mendoza had a moment of fantasy. Mendoza responded, “Maybe.” Garza said
sometimes it happens and he only wanted the truth; he did not want to put words in
Mendoza’s mouth. Garza asked Mendoza what he was feeling at the moment. He
replied, “I just felt the need to touch.” “Nothing more.” Garza asked, “Touch her in what
way?” Mendoza said just to grab her, although not in a sexual way.
Mendoza said he did not stay there because, in the moment when he touched N.C.,
he reacted thinking, “oh shit, what am I doing?” Mendoza added, “She’s like my
daughter.” Garza said, “We’re men.” Mendoza replied it was like Garza said, “it’s a
moment of weakness, like that.” Garza asked Mendoza to explain about “how” and
“what” weakness. Mendoza explained, “it’s a weakness like something … sexual.”
When Garza suggested it was not penetration, Mendoza replied, it was “[l]ike caressing.”
Garza suggested: “I have a word; let’s see: Arousal?” Mendoza said: “Exactly. Exactly,
arousal.”
Garza asked Mendoza to tell him the truth about how many times he touched N.C.
Mendoza said it happened twice. The last time it happened was the night before N.C.
told her mom. When asked how he touched her, Mendoza explained that he placed his
hand inside N.C.’s leg for 30 seconds and demonstrated to Garza how he did so.
Garza asked if this was the first time Mendoza did this, was it twice, or was it
three or four? Garza suggested there was a time before that. Mendoza replied it was two
months before. Mendoza said that incident was an accident. Then Mendoza said there
were three times before that he touched N.C.’s vagina over her clothes, but one time was
an accident. When Garza asked if he did this purposely for sexual arousal, Mendoza
14.
admitted doing it, not so much on purpose, but he did do it. Garza asked if it was a
moment of weakness and for sexual arousal. Mendoza replied, “Yes.”
When asked if he tried to put his hand inside N.C.’s pants, Mendoza denied
placing his finger inside of N.C.’s pants, explaining that his finger may have gotten stuck
when he pulled the blanket off N.C. Mendoza touched N.C.’s foot and her pants twice
when her shorts were up a little bit. Mendoza said nothing else happened and he put a
lock on the back of N.C.’s door so he would not be able to open it.
Garza told Mendoza that N.C. reported there was a time years ago, when she was
in fourth or fifth grade and sleeping in the living room, and Mendoza “came in and did
that.” Mendoza replied, “No. Maybe.” Garza said it had happened and he just wanted to
mention it. Mendoza said he went to pick N.C. up into his arms and she began “to move
really crazy, and she was going to fall off my arms, so I put her back on the sofa.” N.C.
screamed at him and when she moved, his “hand touched her there.” But this was
because N.C. “started to move like crazy.” When asked if this was another moment of
sexual arousal, Mendoza said it was not because he was trying to take N.C. to bed.
Mendoza said any touching was accidental.
Garza asked again about the incident when Mendoza and N.C. had icy drinks.
Garza told Mendoza that he needed the truth and wanted to know if Mendoza touched
N.C. again. Mendoza denied trying to touch N.C. at that time. Garza asked Mendoza
about the day N.C. reported being molested. Mendoza said he pulled N.C.’s toe “and she
got ugly, telling me things.” They talked about money for getting a pizza later. N.C. said
that because Mendoza pulled her toe, “she told her mom that I tried to touch her too.”
Garza asked: “So, the day before she told her mom, and then one time two months
before that; isn’t there another instance where you touched her by sexual arousal, just
really fast?” Mendoza replied: “Yes, just really fast.” Garza inquired about a third time
because he wanted to know if there were other times during the years. Mendoza said:
“No. No, no.” Garza responded, “I just need for documenting.” Garza added: “So, only
15.
two times?” Mendoza said: “Two times were almost like intentional. Right? And two
times that were accidents.” Garza asked: “So, four times?” Mendoza replied: “Four
times.” Those were the only four times Mendoza remembered.
When asked if he had spoken to N.C., Mendoza said he had not. Mendoza said
that when he touched N.C. she had been sleeping, woke up, he covered her again and left.
Garza asked Mendoza about the times he touched N.C. for arousal and wanted to know if
he also touched her breasts. Mendoza replied maybe so one time, but it was not
intentional because he was trying to cover her. He added, however, that N.C. was
sometimes uncovered and “maybe I did touch her breasts.”
Mendoza said that when he tried to hug N.C., she would turn “in a crazy way;
that’s when her breasts were—” N.C. would fall down, Mendoza would forcibly hug her,
and in so doing he would sometimes touch her. These “accidents” “happened many times
on the breasts.” N.C.’s mother knew about this because she had seen these falls happen
many times.
Garza asked if there were other instances they had not discussed when Mendoza
touched N.C.’s private part in a moment of sexual arousal or by accident. When
Mendoza replied negatively Garza asked him if he was sure. Garza asked Mendoza if he
had too much to drink the times he touched N.C. Mendoza said he was sober. Garza
wanted to know if there was a time Mendoza showed N.C. his penis, quickly by accident
in a moment of arousal. Mendoza replied there was a time N.C. came into the bathroom
while he was taking a shower, but it was an accident because he thought it was his wife.
Mendoza described N.C. as never accepting a kiss on the cheek. N.C. would get
defensive and they were always fighting. Once, his lips touched her just a little bit on her
lips. N.C. told Mendoza to not kiss her there. He explained there were “always problems
with that girl.” Garza asked if there were any times N.C. tried to show Mendoza her
breasts or private parts. Mendoza replied: “No. She’s very careful with that.” Garza
16.
asked if there were times N.C. wanted Mendoza to touch her. Mendoza said he did not
know but “she never demonstrated nothing like that.”
When Garza asked if Mendoza had permission to touch N.C. twice out of arousal,
Mendoza said it was not that he had permission. Garza suggested Mendoza “just
faltered.” Mendoza replied, “Yes.” Garza asked Mendoza about the two times he
touched N.C. for arousal whether it was “[w]eakness time.” Mendoza said, “Yes.” Garza
asked whether Mendoza’s penis was erect. Mendoza said no, it was “only in thought.”
Garza, continuing to probe, suggested Mendoza only wanted to touch N.C. Mendoza
agreed, saying he only wanted to touch N.C.’s body. It never crossed his mind, and he
did not want to have sex with her.
E. Apology Letter
Toward the end of questioning, Garza asked Mendoza what he could: “do for her
[N.C.] to make her feel safe and continue to live her life with you? Because she’s a little
bit scared this is going to happen other times. What can you do so this doesn’t happen
anymore?” Mendoza said the only thing he could do is to live separate from his family
because “neither her, my wife nor I are going to be okay.” Mendoza said there would be
no trust between themselves, although he would like for his family to come back to live
with him.
Garza reiterated that N.C. was afraid. Garza feigned ignorance of how to say
apology in Spanish and asked Mendoza if he could tell him. Garza suggested in English
that Mendoza apologize. Mendoza offered the Spanish word “disculpa”, translated as
“apology.” Garza continued: “Yeah, A letter of, if you want to, so that she feels better.
What do you think about that? Tell me.” Mendoza replied: “For me, if she feels better,
that’s fine. If that helps her, I can make the letter.” When Garza asked if he would do it,
Mendoza said “Yes.”
Garza handed Mendoza paper, offered to stand outside, and told Mendoza to tell
him when he was finished. Garza said the date and told Mendoza to sign the apology.
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Garza told Mendoza that when they do these letters, “you do it your way.” He also asked
Mendoza if he needed water and gave him a cup of hot water. Mendoza wrote the
following note:
“[N.C.], I spoke with the sheriff officer about what happened, with
the problem we’re going through [N.C.], I just want you to know that I feel
very bad about what happened, and please; I offer you an apology dear and
don’t be afraid I hope as you receive and read this letter you feel better”
Garza said he was going to give the note to N.C. He asked Mendoza if that was all
he had to say, and do you not want to add anything else? He shared his own thoughts
with Mendoza. Garza used the example of a spouse who cheats and later says he is sorry:
“Well, what has he done? Sorry about what? What did you do, asshole?
You know? The woman wants to know; sorry I cheated on you; sorry I
slept with another woman; sorry I bought my lover a one thousand dollar
diamond and I only bought you a flower. Do you understand me: She
wants to know the apology for specifically for what?”
Garza told Mendoza to write down what he wanted. He was only giving Mendoza
ideas. Garza added: “write what you want. I’m going outside. Tell me when you’re
ready.” Mendoza asked to use the bathroom and Garza directed him where to go.
Mendoza suggested N.C. would understand [Garza] better. Garza replied: “No, no, no.
The letter is in your way, not mine.” Mendoza added the following to his apology note:
“and forgive me for having touched you where I shouldn’t have it was just weakness
Respectfully Tomas Tirado I hope you understand.”
As the questioning was about to conclude, Mendoza asked if all was fine and
whether he could see his kids. Garza indicated that was between them. Mendoza
explained his wife had told him that if he spoke with Garza, “she was going to give me a
chance to—” Garza apparently broke off Mendoza’s statement and said he would talk to
Mendoza’s wife and then the two could communicate. Garza said: “I am going to call
her today. So that things are over quicker.” Garza added, “So that everything goes back
to normal.”
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Garza told Mendoza that it was almost over, but “[n]ot with us.” Garza asked
Mendoza if he had any questions. Mendoza asked if this problem was going to affect his
record. Garza replied it was because, like he explained at the beginning, he was going to
document everything. Garza explained: “When we began to talk, you told me a lot of
things, that you touched her parts, accidents. There are instances, circumstances, when a
man touches a woman in a private part and it is not criminal.”
F. The Arrest
Garza further explained that Mendoza told him he touched N.C.’s parts by
accident “X amount of times.” Garza understood this was not criminal but said: “you
also explained to me, you told me the truth, and thank you. But there are two times that
you touched her in a moment of weakness, for 10 seconds and 30 seconds. Those two
instances are not accidents.” Garza explained they were criminal felonies.
Garza then said, “I am going to arrest you.” Mendoza asked, “[n]ow?” Garza said
yes, asked if Mendoza wanted him to call someone, and said he was not going to tell
anyone about Mendoza’s charges but if he wanted to tell anyone he could do so. Garza
told Mendoza that just because he was being arrested did not mean Mendoza was guilty,
only that he had probable cause Mendoza had committed crimes.
Garza reiterated that he was arresting Mendoza, that he had a right to an attorney
and to go to court, and there was a chance he could be free from that. Mendoza asked
how long he would be under arrest and they discussed bail. Garza told Mendoza he
legally could get three phone calls, but Garza would allow as many as he wanted.
II. PRETRIAL HEARING
A pretrial motion pursuant to Evidence Code section 402 to suppress Mendoza’s
statements was conducted on August 31, 2022. The parties stipulated that the
transcription was “appropriate” and it “would go back to the jury.” Defense counsel
moved “to exclude the entire interview.” The court noted it wanted to initially focus on
the beginning and setting of the interview. Deputy Sheriff Garza was called as a witness.
19.
Garza testified he was a sheriff’s deputy for Kern County for about 20 years and
he interviewed Mendoza. Garza initially contacted Mendoza by phone, spoke to him in
Spanish, and indicated he wanted to meet with Mendoza. They later met at the Delano
substation where Garza spoke to Mendoza in Spanish. Their conversation took place at
5:00 p.m. on August 1, 2019. Garza did not interview Mendoza in the suspect interview
room but in his own office. Garza felt his office was a lot cooler, more comfortable,
more relaxed, and would make Mendoza less nervous. Garza’s office was 10 feet by 10
feet. His desk was in the middle of the office. Mendoza sat at a chair to the side of
Garza’s desk about two feet from the entry door to the office. The sheriff’s substation
shared offices with “Kern County health, and … Probation.”
The door to Garza’s office was open during the interview. Beyond Garza’s office
door was a larger squad room with six desks, each with a computer, where deputies
prepare their reports. There were no other deputies present when Garza interviewed
Mendoza. The audio recording of the interview was played during the hearing. The
parties agreed to rely on the translated transcript of the interview before the entire
recording was played.
Before making its final ruling, the trial court identified these issues: “first is
whether this is a custodial setting and whether the conversation was freely and
voluntarily given. And the second part is whether there’s a foundation for the letter.”
The court regarded the first issue, which comprises two separate issues, as falling within
Miranda. The court gave its preliminary thoughts before making a final ruling.
The court noted that Mendoza went to the substation by invitation and was not
brought there. He was not in handcuffs and was not told he was under arrest. Garza’s
office door was left open. No one was blocking the door, Garza’s voice was not
intimidating, there was no yelling. The court found that when Mendoza arrived, he was
not in a custodial environment and a reasonable person would believe they were free to
20.
leave. In addition to not being handcuffed, there were no other deputies around,
including outside the door.
The court acknowledged that Garza used ruses, although it found his questions
were open ended. One ruse the court noted was Garza’s mention of DNA evidence, but it
was not phrased that “there will be DNA evidence.” The court also acknowledged that
Garza used the word confidential and that Garza said: “I’m not going to tell your wife.
I’m not going to tell some lady out there, the judge, nobody.” The court noted Garza said
he would make the decision about whether Mendoza’s conduct was or was not criminal
and there was discussion about the Penal Code. The court found the letter admissible but
subject to cross–examination.
The court found the interview to be consensual because “[a]t no time was the
defendant not free to leave.” This was so even though there were ruses used. The court
again pointed out that Garza said he would not “tell anybody, including a judge.” The
court reasoned that, although the statement may not have been true, perhaps no charges
would have been filed if Mendoza had not been arrested based on the conversation. The
court ruled everything admissible and that there was no duty to give Mendoza Miranda
warnings. The court adopted its preliminary ruling as its final ruling.
The court’s express reasoning included the issues of whether Mendoza was in
custody, as well as if his statements to Garza were made voluntarily. Although the court
referred to Garza’s promise of confidentiality as one of his ruses, it is clear the court did
not find that the promise of confidentiality overcame Mendoza’s will. The court framed
the issue as falling under Miranda rather than due process. The core point of whether
Mendoza’s statements were voluntary after being promised that his statements were
confidential was addressed and rejected by the court.
21.
III. TRIAL
A. Victim’s Testimony
N.C. was 17 years old and in the 12th grade when she testified. N.C.’s mother was
married to Mendoza. Mendoza moved in with her when N.C. was six years old.
In the early morning of June 29, 2019, N.C. sent her mother a text message
explaining what Mendoza was doing to her. The message read: “When I was in the
fourth, fifth grade, Tomas assaulted me for a moment or a little while. During the night.
Then other times. I was young and stupid. He sexually assaulted me again. He came to
my bedroom around 2:00 or 3:00 in the morning and began touching me there. I started
to get away from him. He wouldn’t stop. I’m sorry I could not tell you this in person.
You know how I am.”6
N.C. sent the message after Mendoza had entered her room at nearly midnight and
locked the door. Mendoza stayed at the end of the bed. N.C. was scared because she felt
as though Mendoza “really wanted to do something bad to me.” Mendoza started
touching N.C. from outside of the blanket and then pushed his hand under the blanket to
touch her around the inside of her legs and stomach. N.C. was sleeping in her jeans to
prevent Mendoza from touching her. Mendoza began touching the outside of N.C.’s
vagina.
Mendoza began rubbing N.C.’s vagina over her pants before trying to undo a belt.
He tried to push his hand inside of N.C.’s pants but could not. N.C. tried to move
Mendoza’s hand away from her but that did not stop him. N.C. estimated this touching
lasted for minutes. N.C. thought that Mendoza stopped because he realized she was
moving around too much to be asleep. Mendoza left N.C.’s room quietly like nothing
6 N.C.’s mother, C.B., who was devastated by the message, made a report to law
enforcement about a week later. N.C. was 14 years old when she reported Mendoza’s
conduct.
22.
happened. N.C. first texted a friend around 2:00 or 3:00 a.m. N.C. texted her mother
about an hour later.
The first time Mendoza touched N.C. she was eight or nine years old, having a
sleepover in their living room. This was what N.C. was referring to in her text message
when she mentioned the fourth grade. N.C. was on the couch watching a movie when
she heard Mendoza coming home from the outside. She thought she would get in trouble
for being up late so she pretended to be asleep under her blankets. Mendoza came from
behind N.C., placed his hands inside her blanket, then inside her pants, and began
touching inside her vagina.7 Mendoza was pushing his fingers everywhere and it really
hurt. N.C. felt terrified and knew what Mendoza was doing was wrong.
The next time Mendoza touched N.C. was after she and Mendoza got snow cones
together. N.C.’s mother was not with them. N.C. was eight or nine years old. They were
in a red truck with two chairs and a divider. While N.C. was holding her drink, Mendoza
parked the truck and pulled on her shorts with his hand. He was touching N.C. on top of
her leg. She asked him what he was doing. N.C. asked Mendoza to stop and told him it
was not right. Mendoza said nothing and kept touching her.
Mendoza could not get inside N.C.’s shorts so he put his hand or finger over her
stomach and into the zipper to undo her shorts. Mendoza touched N.C. inside her vagina
under her underwear. N.C. was scared because she was alone with Mendoza and they
were parked in the fields. N.C. remained quiet about these incidents because she did not
believe anyone would believe her.
When N.C. turned 10 or 11, every month or so Mendoza would shine a flashlight
in N.C.’s face to see if she was asleep or pretending to be asleep. These incidents
7 N.C. said she was on the floor, not the couch, when Mendoza came up behind her.
On cross-examination N.C. said she was on the floor, she was alone at the sleepover, she
did not remember the time of year, and she did not remember the time of her encounter
with Mendoza or what movie she was watching.
23.
increased as N.C. got older. Mendoza could not always touch N.C. She estimated
Mendoza was able to touch her “over ten times.” Mendoza would try to touch N.C. over
her clothes. He would also try to touch her legs, stomach, and vaginal area. Mendoza
would also touch N.C.’s chest and tell her to sit on his lap. When Mendoza touched
N.C.’s chest, he would put his hand under her shirt.
N.C. did not want Mendoza to hug her because she did not want him to touch her.
She felt scared. N.C. stated that she was telling the truth. On cross–examination, N.C.
said she was afraid to tell her mother or older brother about Mendoza’s first lewd act on
her because she did not think anyone would believe someone who was only eight or nine
years old. N.C. was also afraid to tell the police what happened.
The next time Mendoza touched her was some months later, N.C. could not recall
how many months passed between the incidents, but she thought it may have been
summertime because they were getting snow cones. When Mendoza came home from
work, he would often ask N.C. to give him a massage. If N.C. tried to rub Mendoza’s
back, he would put his hand on her leg and “go up from there to try to touch” her vagina.
This occurred every one or two weeks or whenever he was tired.
Whenever Mendoza was with N.C. at the beach, the lake, or someone’s pool, he
would try to play with her in the water, touching N.C.’s vagina. Mendoza would claim it
was an accident. This occurred every few months. When N.C. was in middle school, she
wore all black and shaved her head. N.C. was told to see a counselor. N.C. never told
her counselor about Mendoza’s conduct. N.C. attributed her emotional struggles to
Mendoza.
B. Deputy Garza’s Testimony
Deputy Phillip Garza of the Kern County Sheriff’s Office began his investigation
on July 5, 2019. Garza received the text message N.C. sent to her mother on June 29,
2019. Garza and Mendoza began a nearly two-hour recorded conversation just after 5:00
p.m. on August 1, 2019, at the substation. Garza chose his office for his interview of
24.
Mendoza rather than the interview room because it was hot and uncomfortable in that
room and his office was cool and more comfortable. The support staff were headed out
for the day.
The recording of the interview in Spanish was played for the jury. The jurors were
also given a written transcript in two columns with Spanish on one side and an English
translation on the other. The jurors were allowed to keep copies of the transcripts.
Toward the end of the interview, Garza asked Mendoza to write a letter of apology
in Spanish. Garza was certified by the sheriff’s office as a Spanish speaking deputy.
Mendoza’s letter, or note, was admitted into evidence, including a translation into
English. The letter was read to the jury. Garza walked out of the office while Mendoza
wrote the letter, waiting in the squad room. Garza did not want Mendoza to feel
uncomfortable by being in the room. Mendoza spent about eight minutes composing the
letter.
The letter stopped at the third to the bottom line and was signed and dated. After
reading Mendoza’s letter, Garza asked him if he was done and if there was anything else
he wanted to add. They had a conversation. Garza asked if there was something specific
he wanted to add to the letter because if Garza wrote an apology letter he would be
specific, although he told Mendoza he did not have to. Garza left his office.
When asked why it was important as a detective for Mendoza to be more specific
in his letter, Garza said if he was more specific, it “would be evidence toward an
admission.” Garza also felt that when people make mistakes in their lives, they want to
tell others, “like, taking the rock off my chest.” Garza believed it was therapeutic and
would benefit Mendoza emotionally and would benefit N.C. if the apology was more
than a generic apology. Garza gave Mendoza a few more minutes to add to the letter.
Mendoza added “and forgive me for having touched you where I shouldn’t have. It was a
weakness. Respectively. I hope you understand?”
25.
Garza acknowledged it was an investigative tactic when he told Mendoza things
like he was not a suspect, they were just there to document his statement, and that he did
not think things were criminal. Garza said he used these tactics to make the person he is
interviewing comfortable, “like they could tell me anything.” Garza wanted the truth
from anyone he talked to. He added that the more secure a person feels, the more apt
they are to talk to him and tell him the truth.
On cross-examination, Garza explained that mother reported that her daughter had
been touched by Mendoza. Garza interviewed N.C. in his patrol car in a parking lot
where she was living. After questioning N.C., Garza said he did not formulate ideas
about whether it actually happened and had not yet made a decision to arrest Mendoza.
Garza had N.C. make three pretext phone calls to Mendoza. Garza listened to the
first two calls and heard no incriminating statements by Mendoza. Another deputy
listened to the third phone call. This time too, Garza decided not to arrest Mendoza.
Garza, however, found N.C. willing to share what happened to her and thought she
“appeared to be telling the truth.” It took a month for Garza to talk to Mendoza because
he had many investigations under way. Garza also explained that N.C, was not living
with Mendoza when she made the report. Anytime there is a victim who is separated
from a suspect in an investigation, there is no immediate danger. Garza was focusing on
cases where the victims were in immediate danger, as well as emergency reports.
Given the allegations that were made, Garza described this case as one with a
priority closer to the top. Yet, at that time Garza said he had not formed a decision
concerning Mendoza’s arrest. Once Garza gets enough information to make an arrest, he
does so. Once his investigation in this case was complete, “I immediately made the arrest
on that same day.”
Garza contacted Mendoza by phone and asked to interview him, which occurred
on August 1, 2019, about 5:00 p.m. When Mendoza arrived at the substation, Garza did
26.
not use the interview room because it was an extremely hot day with issues in the air
conditioning unit. They used his office which was cool.
When asked what tactics he employed, Garza said he appeared friendly to build
rapport with Mendoza. He also used minimization—trying to communicate to Mendoza
that the allegations were not as serious as they actually were. Garza wanted Mendoza to
feel the allegations were minimal. Garza used ruses to make Mendoza more comfortable
and open to communicating and speaking the truth to Garza.
As Garza talked with Mendoza, he did not want Mendoza to have the mindset that
he was going to talk about felonious acts. Garza felt that if he could minimize in
Mendoza’s head the level of crime for which he was being investigated, Mendoza would
feel more comfortable talking to Garza about his felonious acts. Garza wanted Mendoza
thinking his acts were less than they were “so that he wouldn’t have a fear of being
arrested and going to jail.”
The ruse is a lie, a legal tactic used by law enforcement when interviewing people.
The investigator will lie, tell the person being interviewed “something that’s not true to
make [the person] more comfortable in speaking with me or to make [the person] feel
that there’s not going to be any consequences if, in fact, [the person does] admit to any
wrongdoing.” One ruse Garza said he used was to tell Mendoza that everything he told
Garza was “going to be confidential.” “I told him I wasn’t going to tell his wife or tell
the judge anything that he tells me.”
Another ruse Garza used was to pretend he did not know Spanish that well. Garza
also mentioned DNA evidence although there was no DNA evidence in the case. At the
conclusion of the interview, Garza placed Mendoza into handcuffs and placed him into
another deputy’s patrol car. Garza did let Mendoza make some personal phone calls.
Garza said Mendoza did not have to write the letter at all. Garza maintained that
although he had enough information to make an arrest, at that moment in time he had not
27.
yet decided to arrest Mendoza. Garza conceded that when he asked Mendoza to add
more to his note to N.C. that he was “giving him ideas.”
C. Mendoza’s Testimony
Mendoza began living with mother in 2009 when N.C. was four years old.
Mendoza denied touching N.C. in either the sleepover or snow cone incidents. Mendoza
denied touching N.C. or her private parts while driving or in a swimming pool or lake.
Mendoza admitted entering N.C.’s room on June 29, 2019, but only to turn off the
television by pulling the cable attached to the game remote from under her because the
remote was under her.
Mendoza touched N.C.’s hip when he was placing a blanket back on her.
Mendoza denied ever putting his hands beneath N.C.’s blanket or touching her to
sexually arouse himself. Mendoza touched N.C.’s chest accidentally when he was trying
to hug her. Mendoza explained that the psychologist told him he needed to hug N.C.
more. Each time he tried to do so, she became aggressive and fell. He also tried to stop
her from falling one time.
Mendoza attempted to hug N.C. another time in the living room. Mendoza tried to
kiss N.C. once, but she turned away. Mendoza did not consider N.C. to be a person of
sexual interest. Mendoza was not aroused around N.C. and did not have an erection.
Mendoza went to the substation to inquire about when he would get to see his children.
Mendoza said he did not understand all of the words Garza used during the interview.
Mendoza admitted he told Garza that he twice touched N.C. in a moment of
weakness, but said he used those words to assist Garza and not to indicate he had any
sexual intent in touching her. Mendoza described Garza as giving him ideas. There were
things Garza said that Mendoza was not understanding. When Garza talked about being
aroused, that was his idea not Mendoza’s idea.
Mendoza denied placing his hand on N.C.’s vagina. Mendoza indicated to Garza
where he put his hand, and it was Garza who used the word vagina. During the interview,
28.
Mendoza answered yes to a question about whether he was aroused when he touched
N.C. “because we were talking about how that was called, but I was not feeling that.”
Mendoza said he wrote a note to N.C., but did not write the last sentence asking
her to forgive him for touching her where he should not have, or the statement that it was
just weakness. Mendoza did not know who wrote the last sentence of the letter.
Mendoza thought his wife was jealous of him because she thought he was cheating with
other women. C.B. had already threatened him. Mendoza denied ever abusing N.C.
Mendoza asserted his wife and N.C. were lying.
D. Document Expert
Beth Chrisman is a forensic document examiner. In her opinion, the original
apology note attributed to Mendoza was written by more than one person. The first eight
and a half lines to line nine, as well as the signature, were written by one person. The
remaining two and a half lines of the note were written by a different person. Chrisman
arrived at this conclusion by examining the letter formation, spacing, and the letter height
proportion. There was also a break in the rhythm of the writing. The majority of the
letter was written at a slower speed than the lines at the end of the letter. The writing at
the end also gets smaller.
E. Rebuttal
Garza testified in rebuttal that he added nothing to or alter Mendoza’s apology
letter. Doing so would be a crime and could have led to Garza losing his job and going to
jail. Garza would not risk his livelihood and did not falsify Mendoza’s letter.
IV. CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION
The trial court expressly found that because Mendoza was not in custody, Miranda
warnings were therefore not necessary. We find the deputy’s questioning tactics,
employed without advising Mendoza of his Miranda rights, turned what arguably started
as a noncustodial interview into a custodial interrogation. The interrogation became more
coercive when Deputy Garza promised Mendoza that anything he said would remain
29.
confidential. The failure to give Miranda warnings coupled with a custodial interrogation
violated Mendoza’s Fifth and Fourteenth Amendment rights against self–incrimination
and to counsel.
A. Standard of Review
In determining if an interview is an interrogation and if the defendant was in
custody, we apply a mixed standard of review. We review the trial court’s factual
findings regarding the circumstances of the interrogation for substantial evidence. We
independently determine whether a reasonable person in the defendant’s position would
have felt free to end the questioning and leave. (People v. Moore (2011)

51 Cal.4th 386

,
394–395.)
B. Privilege Against Self–Incrimination
The Fifth Amendment privilege against self–incrimination is incorporated into the
Due Process Clause of the Fourteenth Amendment and thus applies to the states. (Rogers
v. Richmond (1961)

365 U.S. 534

, 540–541; People v. Zabelle (2022)

80 Cal.App.5th 1098

, 1106, overruled on another ground in People v. Lynch (2024)

16 Cal.5th 730

, 768-
769.) To protect a suspect’s Fifth Amendment right against self–incrimination, prior to a
“custodial interrogation,” Miranda requires that law enforcement advise a suspect of the
right to remain silent, that any statement made can be used against him or her in a court
of law, that the suspect has the right to the presence of an attorney, and that if he or she
cannot afford an attorney, one will be appointed. (Miranda, supra, 384 U.S. at p. 444;
People v. McCurdy (2014)

59 Cal.4th 1063

, 1085‒1086.)
The Fifth Amendment provides that no one shall be compelled in a criminal case
to be a witness against himself or herself. “A statement obtained in violation of a
suspect’s Miranda rights may not be admitted to establish guilt in a criminal case.”
(People v. Jackson (2016)

1 Cal.5th 269

, 338–339.)
An interrogation is custodial, for purposes of requiring Miranda advisements,
when the person is taken into custody or is otherwise deprived of his or her freedom in
30.
any significant way. Custody consists of either a formal arrest, or, a restraint of freedom
of movement of the degree associated with a formal arrest. All the circumstances of the
interrogation are relevant to the inquiry. These include the location, length and form of
questioning, the degree to which the investigation was focused on the defendant, and
whether any indicia or arrest were present. We deferentially review the trial court’s
findings. (People v. Moore,

People v. Mendoza CA5 ( 2024 )

Document Info