P. v. Herrera

Filed 6/16/15 P. v. Herrera CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS A. HERRERA,
Defendant and Appellant.
G049686
(Super. Ct. No. 11CF1339)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Dan
McNerney, Judge. Affirmed.
David McNiel Morse, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and
Respondent.
* * *

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2
A jury convicted defendant Luis A. Herrera of four counts of lewd and
lascivious acts upon the body of a child under 14 years of age (Pen. Code, § 288, subd.
(a)) and found that, in the commission of the charged offenses, defendant committed an
offense against more than one victim. The court sentenced defendant to a total aggregate
term of 30 years to life and imposed a restitution fine of $200.
Before trial started, defendant moved to exclude his statement to the police
on the ground it was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [86
S.Ct. 1602, 16 L.Ed.2d 694]. The court denied the motion, and the sole issue in this
appeal is whether this was error. It is undisputed no Miranda warning was given before
the police interviewed defendant. Thus, the issue here would be whether the police
questioned defendant while he was in custody.
But, as the Attorney General points out, we need not determine whether the
interrogation violated the restrictions of Miranda because defendant here elected to
testify, making any error in denial of the motion harmless. A statement taken in violation
of Miranda “is admissible to impeach the defendant’s credibility as a witness, so long as
the statement otherwise is voluntary.” (People v. Peevy (1998) 17 Cal.4th 1184, 1188.)
Neither in the trial court nor here does defendant assert any contention he would not have
testified but for the denial of his pretrial motion. In fact, defendant has failed to respond
to the Attorney General’s argument based upon his decision to testify and thus we
conclude he concedes this point.

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3
The judgment is affirmed.
RYLAARSDAM, J.
WE CONCUR:
O’LEARY, P. J.
IKOLA, J.

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