People v. Saucedo CA2/6 ( 2024 )

Filed 10/18/24 P. v. Saucedo CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B331005
(Super. Ct. No. 21F-03798)
Plaintiff and Respondent, (San Luis Obispo County)
v.
CHRISTOPHER SANTOS
SAUCEDO, SR.,
Defendant and Appellant.
Christopher Santos Saucedo, Sr., appeals from the
judgment after he was convicted, by a slow plea, of committing
two counts of lewd acts on a child (Pen. Code,1 § 288, subd. (a)),
sentenced to 10 years in state prison, and ordered to pay $50,000
in victim restitution. Saucedo contends: (1) the judgment should
be reversed because the trial court admitted statements obtained
1 Statutory references are to the Penal Code.
in violation of his Miranda2 rights, and (2) the restitution order
must be vacated either because he did not waive his right to be
present at the restitution hearing or because the order is not
supported by substantial evidence. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Mya Doe told an Ohio detective that Saucedo had inserted
his fingers and tongue into her vagina. Detective Dustin Virgil of
the Paso Robles Police Department spoke with Saucedo about
Doe’s allegations. Saucedo denied that anything inappropriate
happened and agreed to participate in a polygraph examination
to prove his innocence. During a prepolygraph interview,
Saucedo admitted that he inserted his index finger in Doe’s
vagina. He also admitted to touching Doe’s breasts and buttocks.
Saucedo moved to suppress the statements he made during
the prepolygraph. The trial court denied the motion, concluding
that Saucedo was not in custody; even if he was, his Miranda
waiver was voluntary. The parties then agreed to submit the
case to the court on the documents by a slow plea. After
considering the documents, the court found Saucedo guilty of
committing two counts of lewd acts on a child, and found true
various aggravating and mitigating circumstances. It sentenced
him to 10 years in state prison: the upper term of eight years on
one conviction, and a consecutive two years (one-third the middle
term) on the other. It also ordered him to pay $50,000 in victim
restitution.
DISCUSSION
Admission of Saucedo’s statements
Saucedo contends the trial court erred when it admitted the
statements he made during the prepolygraph interview because
2 Miranda v. Arizona (1966) 384 U.S. 436.
2
they were obtained in violation of his Miranda rights. We
disagree.
1. Background
Saucedo has been diagnosed with intellectual disability
disorder, autism, ADHD, anxiety, and temporal lobe epilepsy.
After his arrest, Saucedo’s attorney declared a doubt as to his
competency. The trial court found Saucedo incompetent to stand
trial and suspended criminal proceedings. Proceedings were
reinstated nine months later.
Proceedings resumed with a hearing on Saucedo’s motion to
suppress the statements he made during the prepolygraph. At
the beginning of the suppression hearing the trial court took
judicial notice of the existence of the records showing that
Saucedo had previously been found incompetent. The court also
took notice of Saucedo’s developmental disabilities.
At the hearing Virgil testified that Saucedo volunteered to
participate in a polygraph. Virgil made no threats or promises to
Saucedo about his participation. He told Saucedo that the
polygraph would be conducted at the police station.
When Saucedo arrived at the police station, Virgil took him
to a small interview room where he met with Christopher
Fitzpatrick, a digital forensic specialist from the San Luis Obispo
County Sheriff’s Office. Fitzpatrick wore civilian clothes, and
Saucedo was not handcuffed. Virgil left the room and listened
from outside. The door to the room was unlocked.
Saucedo told Fitzpatrick that he had not done a polygraph
before. He said that he gets nervous, has anxiety, and has panic
attacks. He said that he did not want to take the polygraph
initially but his mother convinced him that police may see not
doing so as a sign of guilt. Saucedo did not “want to look guilty at
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all.” He believed that if the polygraph went well he could reunite
with his wife and son.
Fitzpatrick told Saucedo that he had to leave the room to
talk “to the guys” about the case and write down questions they
wanted him to ask. He said, “This is kind of secure so just stay in
your seat. I don’t . . . want you to wander around.” Saucedo
asked if he could keep the door open. Fitzpatrick replied that it
should stay shut “for privacy.”
Fitzpatrick explained that Saucedo was not required to
answer any questions or give any information. Any information
he did provide “could be used against [him] or made available to
the party requesting the examination.” He then read Saucedo his
Miranda rights:
“[Fitzpatrick]: So the next part is just to protect
both of us[.] I have to read you
your right to remain silent. Okay
anything you s—say may be used
against you in court. You have a
right to the presence of an attorney
before or during questioning. If you
cannot afford an attorney, one will
be appointed to represent you free
of charge . . .
“[Saucedo]: I can’t afford an attorney.
“[Fitzpatrick]: . . . before any questioning if you
wish. Okay? Do you understand?
“[Saucedo]: Yeah.
“[Fitzpatrick]: Okay.
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“[Saucedo]: I can’t afford one.
“[Fitzpatrick]: And—and the other thing is are
you willing to give up those rights?
Are you willing to answer my
questions at this time? Are you
okay with talking to me and doin’
this?
“[Saucedo]: Yeah.”
Fitzpatrick asked Saucedo if anyone had pressured Saucedo to
participate in the polygraph. Saucedo responded, “No, no one
forced me to come in.” Fitzpatrick then asked Saucedo to sign a
waiver of his rights, which Saucedo did.
During the prepolygraph interview Saucedo told
Fitzpatrick he was treated four times for mental health issues as
a child. He took medications, including a pill for anxiety that
morning that was not prescribed to him. He said, “I
understand . . . certain things, and then I don’t.” He needed to
have things explained and “dumbed down” for him.
Fitzpatrick said that Saucedo’s mental health issues would
not prevent him from taking the polygraph. Saucedo asked what
would happen if something prevented him from doing so.
Fitzpatrick said he would inform Virgil and police would continue
their investigation.
Fitzpatrick then proceeded with the interview, and Saucedo
admitted to touching Doe’s vagina. Later Virgil and his partner
joined the interview and asked additional questions. During this
portion of the interview Saucedo again admitted to touching
Doe’s vagina, as well as her breasts and buttocks. He was then
arrested.
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2. Analysis
To protect a person’s privilege against self-incrimination,
before any custodial interrogation law enforcement must advise
the person that they have “ ‘ “ ‘ “the right to remain silent, that
anything [they say] can be used against [them] in a court of law,
that [they have] the right to the presence of an attorney, and that
if [they] cannot afford an attorney one will be appointed . . . prior
to any questioning . . . .” ’ ” ’ [Citation.]” (People v. Suarez (2020)
10 Cal.5th 116, 157 (Suarez).) “An interrogation is custodial
when ‘a person has been taken into custody or otherwise deprived
of [their] freedom of action in any significant way.’ ” (People v.
Leonard (2007) 40 Cal.4th 1370, 1400 (Leonard).) “Whether a
person is in custody is an objective test; the pertinent inquiry is
whether there was ‘ “ ‘a “formal arrest or restraint on freedom of
movement” of the degree associated with a formal arrest.’ ” ’ ”
(Ibid.) This presents “a mixed question of law and fact,”
requiring us to “ ‘apply a deferential substantial evidence
standard’ [citation] to the trial court’s factual findings regarding
the circumstances surrounding the interrogation, and . . .
independently decide whether, given those circumstances, ‘a
reasonable person in [the] defendant’s position would have felt
free to end the questioning and leave’ [citation].” (Ibid.)
Circumstances to consider when determining whether a
person was in custody during an interrogation include whether
they were under arrest, the length of the detention, the location
of the detention, “ ‘the ratio of officers to suspects,’ ” and “ ‘the
demeanor of the officer, including the nature of the questioning.’ ”
(People v. Davidson (2013) 221 Cal.App.4th 966, 972.) Other
circumstances to consider include whether police told the person
they were “considered a witness or suspect,” “whether there were
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restrictions on the [person’s] freedom of movement,” whether the
police officer’s tone was aggressive or accusatory, and whether
police otherwise pressured the person. (Ibid.)
Based on the totality of the circumstances, we conclude
Saucedo was not in custody when he went to the police station for
the polygraph. Saucedo went to the police station voluntarily.
And even though the polygraph did not occur, “we perceive no
material difference between arriving at the station voluntarily to
give a statement and doing so to take a polygraph examination.”
(People v. Potter (2021) 66 Cal.App.5th 528, 541.) Saucedo was
not handcuffed. When he arrived at the station he was taken to
an unlocked interview room. For most of the two-hour interview
only one other person—Fitzpatrick—was in the room with him.
Fitzpatrick was dressed in civilian clothes and told Saucedo
multiple times that he did not have to answer his questions and
could end the interview whenever he wanted. Because a
reasonable person in Saucedo’s position would have felt free to do
so, we conclude he was not in custody. (See, e.g., Leonard, supra,40 Cal.4th at pp. 1400-1401 [despite low IQ, development
disability, and long duration of interrogation, person not in
custody where he was told multiple times that he could he could
end questioning at any time and leave]; People v. Ochoa (1998) 19
Cal.4th 353, 402-403 [person not in custody where he voluntarily
went to police station for polygraph and was told he did not have
to answer any questions]; Potter, at pp. 541-542 [person not in
custody where he voluntarily went to police station, was told he
did not have to talk to police and could end interview at any time,
and was not restrained, and interview lasted under two hours].)
And even if Saucedo were in custody, we conclude that he
validly waived his Miranda rights. A Miranda “ ‘ “waiver must
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be ‘voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception’
[citation], and knowing in the sense that it was ‘made with a full
awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it.’ ” ’ [Citation.]”
(Suarez, supra, 10 Cal.5th at p. 157.) Factors to consider in
evaluating whether the waiver was knowing and intelligent
include the suspect’s mental capacity, whether they signed a
written waiver, whether their rights were explained individually
and in their native language, whether they appeared to
understand their rights, and whether they had prior experience
with the criminal justice system. (Id. at p. 160.) Factors to
consider in evaluating whether the waiver was voluntary include
the length of the interrogation, its location, the suspect’s mental
and physical health, and any police coercion. (Id. at p. 157.)
“ ‘The determinative question “ ‘is whether [the] choice to confess
was not “essentially free” because [the suspect’s] will was
overborne.’ ” ’ [Citation.]” (Id. at pp. 157-158.)
Based on our independent review, we conclude that
Saucedo’s Miranda waiver was knowing and intelligent. (See
Suarez, supra, 10 Cal.5th at p. 158 [appellate court
independently reviews whether waiver was knowing and
intelligent].) Fitzpatrick explained each of Saucedo’s Miranda
rights individually. There is nothing in the record indicating that
Saucedo needed those rights explained to him in any language
other than English. Saucedo said that he understood his rights
and that he was willing to waive them and take a polygraph. He
also said that “no one forced [him] to come in” before he signed a
written waiver reiterating as much. (See, e.g., People v. Jenkins
(2004) 122 Cal.App.4th 1160, 1172-1173 [knowing and intelligent
8
Miranda waiver where defendant with cognitive disabilities
appeared to understand rights waived].)
We also independently conclude that Saucedo’s waiver was
voluntary. (See Leonard, supra, 40 Cal.4th at pp. 1402-1403
[appellate court independently reviews whether waiver was
voluntary].) Saucedo volunteered to take a polygraph. Virgil did
not threaten Saucedo or make any promises to him. Saucedo
knew a polygraph would be conducted at the police station and
went there of his own volition. He said that he wanted to answer
Fitzpatrick’s questions so he did not “look guilty” and could
reunite with his wife and son. Such a desire evidences that
Saucedo’s choice to confess was essentially free and not the result
of police coercion. (Id. at p. 1403 [despite defendant’s limited
intelligence, developmental disabilities, and lack of experience
with law enforcement, and fact that interrogation took place in
small room, Miranda waiver voluntary where defendant was not
required to answer questions and was free to leave].) The trial
court properly admitted Saucedo’s statements to Fitzpatrick and
Virgil.
The restitution order
Saucedo contends the restitution order must be vacated
because either (1) he did not “validly” waive his right to be
present at the restitution hearing, or (2) it is not supported by
substantial evidence and lacks a rational basis. We again
disagree.
1. Background
After convicting Saucedo, the trial court told him that he
would have “to pay restitution, subject to a restitution hearing if
you disagree with the amount.” The court told Saucedo he had
“the right to be at that hearing.”
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At sentencing, counsel objected to restitution because there
was “no indication that the victim . . . accrued any noneconomic
damages.” The trial court replied, “We’re going to have probation
continue to monitor restitution” and set a date for a hearing to
determine the status of restitution. The court asked whether
Saucedo would waive his appearance for that hearing. Counsel
replied, “Absolutely, he’s waiving his presence.”
Prior to the status hearing the probation department
recommended awarding $50,000 in restitution based on the
impact Saucedo’s crimes “have had []on [Doe] and will continue to
have throughout her lifetime.” When the trial court asked about
the recommendation, counsel acknowledged that the court had
“virtually boundless discretion . . . in these types of cases” under
People v. Smith (2011) 198 Cal.App.4th 415 (Smith). “If the
[c]ourt feels that, in its estimation, the [$]50,000 is reasonable
then so be it and [Saucedo] will therefore waive the hearing and
accept that figure.” The court said that it wanted to go over the
probation report and other evidence before deciding how much
restitution to order. It noted that counsel believed the restitution
amount was high but was “not going to object to it.”
At the restitution hearing counsel again reiterated that
Saucedo did not object to $50,000 in restitution: “I think there is
a basis, if the court feels comfortable in concluding that $50,000
is reasonable, even though it’s non-economic. . . . If the court feels
there is sufficient factual basis to justify exercising its discretion
to award a $50,000 restitution, we are okay with that.” The court
then ordered Saucedo to pay $50,000 in restitution for Doe’s
noneconomic damages.
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2. Analysis
a. Saucedo’s presence at the restitution hearing
A defendant has the right to be physically present when a
felony sentence is imposed. (§ 977, subd. (b)(1).) This includes
the right to be present when a trial court orders victim
restitution. (People v. Nieves (2021) 11 Cal.5th 404, 508.) The
defendant may waive the right to be present at a restitution
hearing by entering a knowing, voluntary, and intelligent waiver.
(Ibid.) Counsel may enter such a waiver on a defendant’s behalf
so long as there is “some evidence that the defendant understood
the right [they were] waiving and the consequences of doing so.”
(People v. Davis (2005) 36 Cal.4th 510, 532 (Davis).) We
independently determine whether counsel entered a valid waiver
here. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202.)
We conclude there was. After convicting Saucedo, the trial
court told him that he would have to pay restitution and that he
had the right to be present at the restitution hearing. During
sentencing—when Saucedo was present—the parties discussed
probation’s restitution recommendation. Counsel then waived
Saucedo’s presence at the restitution status hearing, with no
objection by Saucedo. At that hearing counsel represented that
Saucedo would accept the $50,000 figure and waive a formal
restitution hearing. That representation, considered alongside
the trial court telling Saucedo he had the right to be present at
any restitution hearing and the lack of objection from Saucedo
when counsel waived his presence for the status hearing,
constitutes “some evidence” that Saucedo knew the rights and
consequences he was waiving.
But even if it did not, we conclude Saucedo’s absence from
the restitution hearing was harmless beyond a reasonable doubt.
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(See Davis, supra, 36 Cal.4th at p. 532.) The trial court told
Saucedo that restitution was going to be imposed. The court also
told him the amount of restitution under consideration. Months
later, counsel said he understood the scope of the court’s
discretion when imposing restitution and that Saucedo would
accept the recommended amount. Thus, counsel had the
opportunity to bring Saucedo’s concerns, if any, to the court’s
attention but did not. We are convinced beyond a reasonable
doubt that the result would not have been different had Saucedo
been present at this hearing. (See id. at pp. 533-534.)
b. Evidence supporting the restitution order
The California Constitution provides victims the right to
restitution for losses caused by criminal defendants. (Smith,
supra, 198 Cal.App.4th at p. 431; see Cal. Const., art. I, § 28,
subd. (b)(13).) Pursuant to section 1202.4, subdivision (f), trial
courts must order restitution “based on the amount of loss
claimed by the victim or victims or any other showing to the
court.” Restitution is generally limited to economic damages
(Smith, at p. 431), but may also be ordered for noneconomic
damages stemming from a defendant’s violations of section 288
(§ 1202.4, subd. (f)(3)(F)). “Noneconomic damages are ‘subjective,
non-monetary losses including, but not limited to, pain, suffering,
inconvenience, mental suffering, emotional distress, loss of
society and companionship, loss of consortium, injury to
reputation and humiliation.’ ” (Smith, at p. 431.)
We review a restitution order that includes noneconomic
damages for abuse of discretion. (Smith, supra, 198 Cal.App.4th
at p. 435.) “ ‘ “ ‘Where there is a factual and rational basis for the
amount of restitution ordered by the trial court, no abuse of
discretion will be found.’ ” ’ ” (People v. Millard (2009) 175
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Cal.App.4th 7, 26.) We will affirm a restitution order so long as it
“does not, at first blush, shock the conscience or suggest passion,
prejudice[,] or corruption on the part of the trial court.” (Smith,
at p. 436.)
There was no abuse of discretion here. During the
proceedings below Saucedo agreed to waive any challenge to a
$50,000 restitution order, and later said that he was “okay with
that” amount. Because Saucedo stipulated to the amount of
restitution, any challenge to the calculation of the restitution
award is not cognizable on appeal. (Mt. Holyoke Homes, LP v.
California Coastal Com. (2008) 167 Cal.App.4th 830, 842
[doctrine of invited error estops party that induces commission of
error from asserting alleged error is ground for reversal].)
And we would reject Saucedo’s challenge even if it were.
The trial court said that it relied on the probation report to
calculate the restitution award. The report based the $50,000
figure on the psychological harm Doe had endured and would
continue to endure as a result of Saucedo’s abuse. Our sister
courts have upheld restitution orders with even greater baselines
for calculating noneconomic damages for psychological harm.
(See, e.g., People v. Lehman (2016) 247 Cal.App.4th 795, 803-804
[$100,000 per year of abuse for “immeasurable psychological
harm”]; Smith, supra, 198 Cal.App.4th at pp. 436-437 [$750,000
for seven years of abuse and years of psychological trauma that
followed].) The trial court’s use of a lower baseline here therefore
does not shock the conscience or suggest passion, prejudice, or
corruption.
Saucedo also failed to challenge this baseline during the
proceedings below. He cannot do so now. We accordingly
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conclude there was a rational basis for the restitution award, and
no abuse of discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
CODY, J.
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Barry T. LaBarbera, Judge
Superior Court County of San Luis Obispo
______________________________
Mi Kim, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.