People v. Torres

Filed 7/12/18 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D072610 Plaintiff and Respondent, v. (Super. Ct. No. SCN362581) ANTONIO TORRES, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Reversed. Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Felicity Senoski and Joseph Anagnos, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Antonio Torres of two counts of committing a lewd act with a minor under 14 years old (Pen. Code, § 288, subd. (a)) and found true the allegations that he had substantial sexual conduct with the minor. (Pen. Code, § 1203.066, subd. (a)(8).) The court sentenced him to a total term of eight years and ordered him to pay various fines and fees, including victim restitution in the amount of $5,925.75. Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. She presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Under Anders v. California (1967) 386 U.S. 738, she listed as possible, but not arguable, issues whether: (1) defense counsel was ineffective for failing to raise Miranda1 and voluntariness of confession issues, (2) sufficient evidence supported the lewd conduct and substantial sexual conduct findings, (3) the trial court erred by admitting a forensic interview into evidence, (4) the court erred when it gave the jury a pinpoint instruction defining masturbation, (5) the court erred by imposing the middle term sentence rather than the lower term sentence, and (6) the court erred by imposing consecutive sentences. We requested supplemental briefing to address whether defense counsel was ineffective for failing to file a motion to suppress Torres's police interview statements under Miranda. Both counsel responded to our request. We conclude that while the interrogation was not custodial when it began, the totality of the circumstances show that it became custodial, and Torres should have received Miranda warnings when the detectives essentially told Torres that they would not leave, and he could not go home, until Torres told them the truth based on the evidence they had against him. 1 Miranda v. Arizona (1966) 384 U.S. 436. 2 We also conclude that Torres would have prevailed on a suppression motion, that the failure to file a suppression motion was prejudicial. We reverse the judgment based on ineffective assistance of counsel. Accordingly, it is unnecessary for us to consider the other issues raised in Torres's Wende brief. FACTUAL AND PROCEDURAL BACKGROUND The Allegation and Preliminary Investigation In February 2017 73-year old Torres, a Mexican immigrant with no formal education, rented a room from O.H. (Mother) and her husband (Father). The couple's five-year-old daughter, Y.C., also lived at the residence. The couple and Y.C. referred to Torres as "Don Tonio." Torres spent most of his time in his room, but would occasionally watch ...

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