People v. Mejia-Picazo CA1/1

Filed 6/28/23 P. v. Mejia-Picazo CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A165486
v.
ENRIQUE ERNESTO MEJIA- (Solano County
PICAZO, Super. Ct. No. VCR232064)
Defendant and Appellant.
Defendant Enrique Ernesto Mejia-Picazo appeals his conviction of
aggravated sexual assault of a minor, asserting the trial court improperly
denied his Massiah1 motion and request for a mistrial. We disagree and
affirm the judgment.
I.
BACKGROUND
A. Factual Background
Defendant was dating the minor’s mother and resided in the family
home for approximately one year. The minor reported that defendant began
touching her at age 12. She asserted defendant first touched her while
watching television, which included grabbing her breasts, touching
1 Massiah v. United States (1964) 377 U.S. 201 (Massiah).
underneath her underwear, and digitally penetrating her vagina. During the
course of the year, the minor estimated defendant raped her 15 to 17 times,
touched her vagina “many” times, put his mouth on her breasts over 10
times, and showed the minor pornography a couple of times.
The minor stated defendant’s touching made her feel afraid and
uncomfortable. When the minor attempted to stop defendant, he used force,
threatened her by stating he had a gun and “could do anything with it,” and
threatened to touch the minor’s younger sisters.
The minor eventually informed her uncle about defendant’s conduct.
The uncle told the minor to contact him if defendant touched her again. A
few days later, defendant held down the minor, put his mouth on her lips,
breasts, and vagina, touched her vagina, and raped her. Afterwards, the
minor had abrasions around her vagina that were painful and bled, and had
pain while urinating.
The minor again informed her uncle of defendant’s conduct, and her
uncle took her to the hospital. At the hospital, the minor underwent an
examination by a sexual assault nurse. The minor described defendant’s
conduct and reported pain in her vagina when sitting and urinating. The
nurse found abrasions consistent with sexual intercourse and collected swabs
from the minor’s shoulder, breasts, underwear, mouth, vagina, and cervix.
A forensic examiner noted DNA was detected on the underwear and
breast swabs. A criminalist opined there was “strong support” defendant was
a contributor to the DNA mixture on the inside crotch of the minor’s
underwear, “very strong support” defendant was a contributor to the DNA
mixture on the outside crotch and front panel of the underwear, and “strong
evidence” and “very strong support” defendant was a contributor to the DNA
mixture on two different breast swabs.
2
The police subsequently arrested defendant. Defendant denied
culpability when questioned by the police.
B. Procedural Background
The Solano County District Attorney filed an information charging
defendant with aggravated sexual assault of a child by means of sexual
penetration (Pen. Code,2 § 269, subd. (a)(5); count 1), aggravated sexual
assault of a child by means of rape (§ 269, subd. (a)(1); count 2), and
continuous sexual abuse (§ 288.5, subd. (a); count 3). The information further
alleged seven aggravating factors in connection with count 3. However, the
jury only was instructed on four aggravating factors.
The jury found defendant guilty of all three counts. The jury also found
true two aggravating factors in connection with count 3: vulnerability of the
victim and taking advantage of a position of trust. The trial court sentenced
defendant to concurrent prison terms of 15 years to life for counts 1 and 2,
and a consecutive prison term of 12 years on count 3. Defendant timely
appealed.
II.
DISCUSSION
On appeal, defendant argues his alleged confession to a social worker,
Marvin Urroz, was obtained in violation of his Sixth Amendment rights
under Massiah. He further contends the trial court erred in denying his
motion for mistrial based on prosecutorial misconduct and alleged bias.
A. Sixth Amendment
1. Relevant Background
Urroz, an emergency response social worker with Solano County Child
Welfare Services (CWS) was assigned to the dependency investigation for the
2 All statutory references are to the Penal Code unless otherwise noted.
3
minor. CWS’s standard protocol for investigations is to interview the child,
family members, and custodial parent(s). It also is standard protocol to
interview the alleged abuser. The social worker would then prepare a service
log and an investigation narrative.
The record indicates Urroz had two main points of interaction with the
police. First, Urroz attended a multidisciplinary interview of the minor,
which involved all relevant parties. Urroz also frequented the Visalia Police
Department as part of his CWS employment to interview arrestees. During
one visit, one of the detectives asked Urroz to serve as an interpreter for his
interview with the minor’s mother. Urroz proceeded to translate for the
detective, during which Urroz asked some questions not posed by the
detective, and provided the detective with insight as to the minor’s mental
state. Following the detective’s interview, Urroz stayed and conducted his
own interview with the mother.3
Urroz also requested permission from the police to interview defendant
per CWS protocol. Urroz explained this process as follows: “We have a
protocol set up when we are doing [a multidisciplinary interview], when we
are doing investigations in concert with any of the police department law
enforcement. So, the goal of that protocol is that once law enforcement has
done whatever they need to do, then at that point I go ahead and interview
the alleged abuser.” Upon receiving permission, Urroz interviewed defendant
in the Solano County jail. He advised defendant of the dependency
proceedings, and asked if he had any comments. During this interview,
defendant admitted to Urroz that he had sex with the minor, and sought to
3At the detective’s request, Urroz also passed along a photograph of
defendant to the police that had been provided by the minor’s uncle.
4
justify his conduct. Urroz did not ask any follow-up questions regarding
defendant’s admission.
Urroz only recorded comments from defendant that were relevant to his
investigation. He then prepared an investigation narrative, which included
defendant’s statement, and provided it to his supervisor. Urroz did not know
how the police learned about defendant’s statement. CWS ultimately did not
file a dependency petition because the mother was deemed a “protective
parent.”
Defendant moved to suppress his statement to Urroz as violating his
Sixth Amendment rights. He asserted Urroz was acting as an agent of law
enforcement because he was kept informed by the police of the investigation,
provided information to the police, participated in police interviews, obtained
police permission to interview defendant, and had no substantive reason to
interview defendant apart from assisting law enforcement.
During the Evidence Code section 402 hearing on defendant’s motion,
both police officers involved in the matter testified they were not
collaborating with CWS, did not ask any CWS employee to speak with
defendant, and did not discuss the details of the criminal investigation with
anyone at CWS. Urroz also testified at the hearing and explained his
primary duty was to protect the child. He explained it was CWS’s policy to
notify the accused of the allegation and the results of CWS’s investigation
and “ask is there anything you need to say or you want to say about it.” The
information provided by Urroz to defendant was to “let [defendant] know
there is . . . a child abuse allegation, not a criminal investigation.” Urroz
stated neither the police nor the district attorney requested he interview
defendant.
5
Following the hearing, the court denied defendant’s motion. The court
expressed concern about the lack of “boundaries” implemented by the Family
Justice Center,4 and noted “these agencies violate Massiah by having no
boundaries, by having no policies to ensure the existence of boundaries and
there’s a pretty good record that supports that.” However, as to Urroz, the
court stated, “it is clear to me” that “he goes and does this all the time
without many boundaries. But there’s no evidence here in the record that he
was directed to do so.” The court noted Urroz generally “checks to make sure
that in [interviewing a defendant] he won’t be interfering with the criminal
case. And then once they green light it,” he does “his own thing.”
2. Analysis
“The Sixth Amendment to the United States Constitution guarantees
the assistance of counsel during all stages of a criminal prosecution. In
Massiah[, supra,] 377 U.S. 201, the high court held that once a defendant has
been charged with any crime, any ‘government agent[]’ who elicits
incriminating statements from a defendant regarding that crime outside the
presence of counsel violates this protection. [Citation.] Statements made
under such conditions ‘are inadmissible at a trial on the charges to which the
statements pertain.’ [Citation.] This prohibition on government agents
applies equally to law enforcement officers and private persons enlisted by
the government to elicit incriminating statements. ‘[T]he primary concern of
the Massiah line of decisions is secret interrogation by investigatory
techniques that are the equivalent of direct police interrogation.’ [Citation.]
4 The Family Justice Center appears to have been part of the district
attorney’s office, and employs forensic interviewers for multidisciplinary
interviews.
6
“ ‘A trial court’s ruling on a motion to suppress informant testimony is
essentially a factual determination, entitled to deferential review on appeal.’
[Citation.] To prevail, [a defendant] must show ‘ “that the informant (1) was
acting as a government agent, i.e., under the direction of the government
pursuant to a preexisting arrangement, with the expectation of some
resulting benefit or advantage, and (2) deliberately elicited incriminating
statements.” ’ [Citations.] ‘Circumstances probative of an agency
relationship include the government’s having directed the informant to focus
upon a specific person, such as a cellmate, or having instructed the informant
as to the specific type of information sought by the government.’ ” (People v.
Johnsen (2021) 10 Cal.5th 1116, 1152.)
Both parties contend People v. Keo (2019) 40 Cal.App.5th 169 (Keo)
support their respective positions. In Keo, the defendant was convicted of
murdering the mother of his two children. (Id. at p. 173.) He asserted on
appeal that the trial court erred in admitting statements he made while in
custody to a social worker performing an investigation in a dependency
proceeding. (Ibid.) The court rejected his argument. In doing so, the court
identified “ ‘[t]he most important factors’ ” when assessing whether a social
worker acts as an agent of law enforcement: “ ‘whether the investigator
discussed the case with police prior to the interview, whether the interview
was conducted at the police’s request, and whether the primary purpose of
the investigator’s visit was to elicit a confession while in cahoots with law
enforcement.’ ” (Id. at p. 184.) The court noted the social worker
(1) conducted the interview for the purpose of determining the best interests
of the children, not to develop evidence to assist law enforcement in the
criminal case; (2) did not discuss the facts of the case with law enforcement or
the prosecutor before interviewing the defendant; and (3) did not provide her
7
report to the prosecution until a year after the interview. (Id. at p. 187.)
Accordingly, the court found the social worker “was not acting ‘ “under the
direction of the government pursuant to a preexisting arrangement, with the
expectation of some resulting benefit or advantage.” ’ ” (Id. at p. 186.)
Defendant argues Urroz constitutes an agent of law enforcement under
Keo because he (1) was regularly at the police department, including
interviewing people in the jail and interacting with police officers; (2) assisted
a detective in interviewing the minor’s mother, including asking his own
questions and providing commentary of certain elicited facts; (3) conducted
his own interview of mother at the police department; (4) participated in the
multidisciplinary interview; (5) obtained a picture of defendant at the police’s
request to assist with identification; and (6) sought permission from the
police prior to interviewing defendant.
While Urroz certainly had repeat contacts with police, we disagree that
the record supports a finding that Urroz acted as a government agent.
Notably, none of the evidence cited by defendant demonstrates Urroz was
acting “ ‘ “under the direction of the government pursuant to a preexisting
arrangement.” ’ ” (See People v. Johnsen, supra, 10 Cal.5th at p. 1152.)
As in Keo, Urroz’s function was to conduct a child welfare investigation,
not support the criminal prosecution. While the court noted Urroz’s
interview with defendant did not have a meaningful impact on the child
welfare investigation because the mother was deemed a protective parent
and defendant did not have custody rights, Urroz stated he spoke with
defendant because it was standard CWS protocol to inform the alleged abuser
of the charges and allow them to provide any response. Regardless of the
merits of this protocol, it indicates Urroz did not interview defendant at the
direction of the police. Similarly, Urroz, like the social worker in Keo, did not
8
discuss the criminal investigation with police prior to meeting with
defendant. While defendant speculates that Urroz discussed the case with a
detective, nothing in the record supports that suggestion. Finally, Urroz, like
the social worker in Keo, did not share his report containing defendant’s
statement with the police or prosecution. Rather, he only gave his
investigation narrative to his supervisor. Accordingly, the record does not
support defendant’s claim that Urroz was acting as an agent for law
enforcement.
Defendant also claims two out-of-state cases, Com. v. Howard (Mass.
2006) 845 N.E.2d 368 and State v. Aguilar (Tex. Ct.App. 2017) 535 S.W.3d
600, further support his position. We find those cases distinguishable. In
Howard, the social worker identified her role “as part of a joint investigation
with the district attorney’s office.” (Howard, at p. 371.) The social worker
unilaterally reported information about the defendant to the investigating
police officer, questioned the defendant repeatedly and specifically about his
guilt, and forwarded her report to the district attorney’s office. (Ibid.)
Similarly, in Aguilar, the child protective services investigator discussed the
case with police, testified it was a “joint investigation,” and placed his report
in a database to which the prosecutor and police had access. (Aguilar, at
pp. 607–608.) Here, however, the record does not indicate a similar level of
collaboration between Urroz and the police. As noted above, the record does
not reflect a joint investigation, any ongoing discussions about the status of
the criminal case, or submission of the resulting report to police. Without
9
such evidence, the trial court properly denied defendant’s claim of a Massiah
violation.5
B. Motion for Mistrial
Defendant next argues the trial court abused its discretion in denying
his motion for mistrial based on alleged racial bias injected by the prosecutor.
We disagree.
1. Relevant Background
During the prosecution’s examination of Detective Greenberg, the
prosecutor asked him whether he engaged in small talk, in English, with
defendant during the booking process. Greenberg responded affirmatively,
and opined defendant understood English because they were able to
communicate. In clarifying that defendant spoke English, the prosecutor
elicited testimony that defendant had been in the United States over 10
years. Defense counsel objected.
Defense counsel then also asked Greenberg about defendant’s English
skills, clarifying, “He could have conversational English?” After Greenberg
responded, “Yes,” defense counsel observed a criminal defendant is entitled to
an interpreter in California if he is not a native English speaker.
The court paused questioning and interjected the following
commentary to the jury: “Any time I hear someone ask a question like when
did somebody get here, there’s—these crazy politics in our nation right now
and you will hear a lot of nativist code language which is a form of bias, so for
purposes of our analysis today, it doesn’t matter when [defendant] got here.
Doesn’t matter the color of his skin, doesn’t matter the language which he
5We need not address defendant’s argument regarding prejudice
because we conclude the court did not err in admitting Urroz’s testimony
regarding defendant’s statement.
10
speaks. If you feel yourself kind of responding to this nativist code, don’t
because it’s not appropriate.” The court then further explained: “[T]here are
times when someone may be fluent to the extent they can order a beer, but
not fluent to have a more lengthy and detailed conversation. So, to the extent
that—I didn’t hear any express question seeking to cause you to conclude
this, but he has an interpreter because we give him an interpreter and
because it’s appropriate that we give him an interpreter. [¶] So, to the extent
someone may want to think or argue about something here being
inappropriate or faked or anything like that, don’t think that either. That
would not be appropriate. There’s no evidence to even suggest that.”
Defense counsel then asked the detective about defendant’s accent, and
subsequently requested a mistrial. He asserted the prosecutor had no
purpose in raising the issue of defendant’s English-speaking abilities apart
from suggesting defendant was “faking” and “is somehow disingenuous.”
Defense counsel argued, “It’s misconduct. It’s inflammatory. It’s possibly a
violation of [the] California Racial Justice Act. . . . It is a violation of jury
instructions which ask people not to consider the country of origin.” In
response, the prosecution argued his questions were relevant because the
police report indicated defendant was being disingenuous about
understanding the charges based on his language skills.
Following arguments by counsel, the court denied the motion for
mistrial. In doing so, however, the court expressed concern regarding the
prosecutor’s apparent lack of awareness of the racial bias elements.
The trial court then admonished the jury: “[Y]ou heard this question of
interpreters and questioning him and all of that. And I should have shut
that down right away. Because we do not—there’s certain limited exceptions
to this, but it was inappropriate of me to allow the officer to express an
11
opinion, or observation, about anybody else’s language capacity or ability to
understand. So there’s two issues there. One of them is that that’s generally
the sort of thing that requires a much deeper discussion and any of you have
ever had kids who have speech issues like I did, you would know what I’m
talking about. . . . [¶] And so, we generally do not and I should not have
allowed in these circumstances someone to come in and start opining about
someone’s ability to understand a different language. . . . [¶] The second issue
is this kind of thing can very quickly become, the word I used to use as a
lawyer is ‘code.’ Code for something else. When we’re talking about people of
other colors, of other languages, we spent most of the time in voir dire looking
to make sure everyone knew we were going to work hard to not speak in code.
So not be receptive to that kind of code. So not be biased against people,
among other things because of their language.” The court instructed the jury
“to disregard everything that was just stated and responses to either
attorney’s questions about the officer’s opinion or experience about his
language engagement with [defendant]. . . . So disregard it as if you never
heard it.”
2. Analysis
“ ‘The applicable federal and state standards regarding prosecutorial
misconduct are well established. “ ‘A prosecutor’s . . . intemperate behavior
violates the federal Constitution when it comprises a pattern of conduct “so
egregious that it infects the trial with such unfairness as to make the
conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor
that does not render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves “ ‘ “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ”
[Citation.]’ [Citation.] ‘[W]hen the claim focuses upon comments made by
12
the prosecutor before the jury, the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of
remarks in an objectionable fashion.’ ” (People v. Smithey (1999) 20 Cal.4th
936, 960; see also People v. Prieto (2003) 30 Cal.4th 226, 260.) The focus of
the inquiry is on the effect of the prosecutor’s conduct on the defense, not on
the intent or bad faith of the prosecutor. (People v. Crew (2003) 31 Cal.4th
822, 839.)
“Whether misconduct warrants a mistrial is a decision which is within
the sound discretion of the trial court.” (People v. Bennett (2009) 45 Cal.4th
577, 595.) “A trial court should grant a motion for mistrial ‘only when “ ‘a
party’s chances of receiving a fair trial have been irreparably damaged’ ” ’
[citation], that is, if it is ‘apprised of prejudice that it judges incurable by
admonition or instruction.’ ” (People v. Avila (2006) 38 Cal.4th 491, 573.)
We conclude the trial court did not abuse its discretion in denying
defendant’s motion for mistrial. Assuming the prosecutor’s statements
regarding defendant’s ability to speak and understand English constituted
misconduct, any harm was remedied by the trial court’s admonishment to the
jury. The court gave a prompt and thorough admonition, identifying for the
jury the exact material at issue, explaining why it was improper, and
instructing them to disregard all testimony on the issue. “[A] prompt
admonition by the court . . . is generally deemed to remedy the problem
arising from improper argument by the prosecutor.” (People v. Smith (2009)
179 Cal.App.4th 986, 1007.) Nothing in the record indicates the jury
improperly relied on the statements at issue or otherwise failed to follow the
admonition. (See People v. Bennett, supra, 45 Cal.4th at p. 595 [“When a trial
court sustains defense objections and admonishes the jury to disregard the
comments, we assume the jury followed the admonition and that prejudice
13
was therefore avoided.”].) Accordingly, nothing in the record suggests
defendant’s right to a fair trial was “ ‘ “ ‘irreparably damaged.’ ” ’ ” (See
People v. Avila, supra, 38 Cal.4th at p. 573.)
The case upon which defendant primarily relies, Pena-Rodriguez v.
Colorado (2017) 580 U.S. 206, is distinguishable. In that case, a juror
expressed anti-Hispanic bias against the defendant and a witness during jury
deliberations. (Id. at pp. 212–213.) The court recognized the general rule
that a juror’s statements during deliberations cannot be used to undermine a
verdict. (Id. at pp. 217–218.) In that instance, however, the court found
“where a juror makes a clear statement that indicates he or she relied on
racial stereotypes or animus to convict a criminal defendant, the Sixth
Amendment requires that the no-impeachment rule give way in order to
permit the trial court to consider the evidence of the juror’s statement and
any resulting denial of the jury trial guarantee.” (Id. at p. 225.)
Here, the jury did not make any statements indicating it relied on
racial stereotypes or animus to convict defendant. Rather, both counsel
asked a series of questions regarding defendant’s comprehension of English.
The court subsequently struck that testimony and admonished the jury to
disregard that evidence in its entirety. It also specifically warned the jury
against employing bias or stereotypes in evaluating the matter. We have no
basis to conclude the jury did not follow this instruction, and defendant thus
has failed to demonstrate any resulting prejudice.6
6 None of the other cases defendant relies upon support his assertion
that alleged racial bias cannot be cured by admonition or instruction. (See,
e.g., People v. Haskett (1982) 30 Cal.3d 841, 854 [blood-stained newspaper
displayed to jury]; Krulewitch v. United States (1949) 336 U.S. 440, 441–442
[hearsay statements regarding conspiracy]; People v. Antick (1975) 15 Cal.3d
79, 98 [prior conviction evidence].)
14
3. California Racial Justice Act
Defendant also asserts the prosecutor’s questioning violated the
California Racial Justice Act of 2020 (§ 745; CRJA). Under the CRJA, “[t]he
state shall not seek or obtain a criminal conviction or seek, obtain, or impose
a sentence on the basis of race, ethnicity, or national origin.” (§ 745,
subd. (a).) The CRJA then sets forth various categories of conduct “which, if
proved, is enough to ‘establish’ a violation of section 745, subdivision (a).”
(Young v. Superior Court (2022) 79 Cal.App.5th 138, 147.) As relevant here,
these potential violations include (1) when “[t]he judge, an attorney in the
case, a law enforcement officer involved in the case, an expert witness, or
juror exhibited bias or animus towards the defendant because of the
defendant’s race, ethnicity, or national origin” (§ 745, subd. (a)(1)); and (2) if
“[d]uring the defendant’s trial, in court and during the proceedings, the judge,
an attorney in the case, a law enforcement officer involved in the case, an
expert witness, or juror, used racially discriminatory language about the
defendant’s race, ethnicity, or national origin, or otherwise exhibited bias or
animus towards the defendant because of the defendant’s race, ethnicity, or
national origin” (id., subd. (a)(2)).
In the event of an alleged violation of the CRJA, subdivision (b)
authorizes the defendant to file a motion or a petition for writ of habeas
corpus. (§ 745, subd. (b).) Subdivision (c) then provides, “If a motion is filed
in the trial court and the defendant makes a prima facie showing of a
violation of subdivision (a), the trial court shall hold a hearing. A motion
made at trial shall be made as soon as practicable upon the defendant
learning of the alleged violation. A motion that is not timely may be deemed
waived, in the discretion of the court.” (§ 745, subd. (c).) “The defendant
15
shall have the burden of proving a violation of subdivision (a) by a
preponderance of the evidence.” (§ 745, subd. (c)(2).)
In response, the Attorney General asserts defendant’s CRJA claim has
been forfeited because he failed to raise the issue before the trial court. We
agree. Subdivision (c) required defendant to make a motion and prove the
violation by a preponderance of the evidence. (§ 745, subd. (c), (c)(2).) The
record does not indicate defendant made either a written or oral motion
under the CRJA. While the parties argued about the validity of the
questions, defense counsel mentioned in passing that it “possibly” violated
the CRJA, and the court found such questions to be problematic, we decline
to conclude the objection satisfies the procedural requirements of the CRJA.
Accordingly, defendant’s argument under the CRJA has been forfeited.7
III.
DISPOSITION
The judgment is affirmed.
7Because we conclude the trial court did not err in admitting
defendant’s statements or denying his motion for mistrial, we need not
address his cumulative error argument.
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MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A165486
People v. Mejia-Picazo
17