People v. Barberena CA2/4


Filed 8/16/21 P. v. Barberena CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, B305997 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA465947) v. DENNIS ANTONIO BARBERENA, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dabney, Judge. Affirmed. J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent. Appellant Dennis Barberena was convicted of committing 14 acts of sexual abuse against his daughter, N., and stepdaughter, M. In addition to the testimony of N., M., and other witnesses, the court admitted into evidence incriminating statements appellant made during an interview conducted at a police station. Appellant contends that his statements should have been excluded because the interview was a custodial interrogation, but he was not advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He further contends that his sentence, 12 years plus 215 years to life, is unconstitutionally excessive. We affirm. PROCEDURAL HISTORY Appellant was charged by amended information with five counts of sexual intercourse or sodomy with N., who was 10 years of age or younger at the time of the offenses (Pen. Code, § 288.7, subd. (a), counts 1, 4, 9, 10, 11)1; six counts of oral copulation or sexual penetration of N., who was 10 years of age or younger at the time of the offenses (§ 288.7, subd. (b), counts 2, 3, 5, 6, 7, 8); and three counts of willfully committing a lewd or lascivious act against M., who was under the age of 14 years at the time of the offenses (§ 288, subd. (a), counts 12, 13, 14). Appellant pled not guilty and proceeded to jury trial. During jury selection, appellant moved to exclude statements he made to police during the interrogation. The court denied the motion, and a video recording of the entire interrogation was played for the jury and admitted into evidence along with the testimony of N., M., their mother, N.’s school 1Allfurther statutory references are to the Penal Code unless otherwise indicated. 2 counselor, and the officer who interrogated appellant. The jury found appellant guilty of all charges. The court sentenced appellant to the mandatory term of 25 years to life on each of the five intercourse or sodomy counts involving N. (§ 288.7 subd. (a), counts 1, 4, 9, 10, and 11) and ordered the terms to run consecutively. The court further sentenced appellant to the mandatory …

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