P. v. Mesinas

1
Filed 6/17/15 P. v. Mesinas CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS GUADALUPE MESINAS,
Defendant and Appellant.
C074781
(Super. Ct. No. 12F04768)
Defendant Carlos Mesinas forcibly raped L.M., the 14-year-old, severely disabled
daughter of his longtime live-in girlfriend, with whom he had two children. He
videotaped the assault on his cell phone and L.M.’s mother discovered the video. A jury
found him guilty of forcible rape of a minor (Pen. Code, §§ 261, subd. (a)(2); 264, subd.

-- 1 of 27 --

2
(c)(2)),1 rape of a person incapable of giving consent (§ 261, subd. (a)(1)), and a lewd act
on a child of 14 or 15 years (§ 288, subd. (c)(1)). Sentenced to 11 years in prison,
defendant appeals.
Defendant first contends his conviction for rape of a person incapable of giving
consent must be reversed because multiple counts of rape under section 261 cannot be
based on a single act of intercourse. He adds it was error to admit his statement to the
police because it was made without a valid waiver of his Miranda2 rights, and because he
was given an invalid Miranda advisement. He contends it was error to admit
photographs of his altered tattoo and to instruct with CALCRIM No. 371 on
consciousness of guilt, and error to admit evidence of his sex video with another woman.
Finally, he contends the trial court erred in calculating credits, and the People concede the
error.
We find merit only in the first and last contentions. Defendant could properly be
convicted of only one count of rape, because section 264, subdivision (c)(2), increasing
the penalty for rape of a minor 14 years of age or older, is a penalty provision, not a
separate crime. Accordingly, we will consolidate the two rape convictions. We accept
the People’s concession on credits and award defendant 472 days of presentence conduct
credit. We will affirm the judgment as modified.
FACTS
Defendant’s Relationship with Moreno and L.M.
Cristina Moreno had a seven-year relationship with defendant. They were not
married, but they had two daughters together. Moreno also has a daughter, L.M., and a
son who lives with his father. L.M. has severe cerebral palsy, microcephaly (small
1 Further undesignated statutory references are to the Penal Code.
2 Miranda v. Arizona (1966) 384 U.S. 436, [16 L.Ed.2d 694] (Miranda).

-- 2 of 27 --

3
brain), and scoliosis. She is quadriplegic and cannot walk, talk, or use the toilet. She is
fed through a feeding tube. She has severe developmental delay and limited brain
functioning.
Prior to April 2012, defendant and Moreno had a good relationship; she described
him as “good man” who supported them. Defendant had several jobs, including cooking
and cleaning at a restaurant and running a taco stand. In July 2012, he worked five jobs,
from afternoon until early in the morning. He was always affectionate with the girls,
including L.M.
In early April, defendant told Moreno he was seeing another woman. Moreno
learned that woman was Theresa Imrie. Defendant continued to live with Moreno, but
sometimes he stayed elsewhere. Moreno wanted to leave the relationship, but defendant
threatened to take their two girls if she did. Moreno noticed changes in defendant; his
clothes and hair were different and he began to drink. Defendant did not act the same
with Moreno or L.M. Many times over the next three months defendant told Moreno he
had stopped seeing Imrie. Moreno was suspicious and checked defendant’s phone to see
if he contacted Imrie; she could tell he was still seeing her.
Discovery of the Video
In early July, Moreno saw Imrie at defendant’s taco stand. The next day she
checked his phone. The call records had been erased, but there were pornographic
pictures and two videos. One video showed defendant having sex with Imrie at a
restaurant where he worked. The other video showed defendant having sex with L.M. as
she lay incapacitated in her bed. Moreno recognized defendant’s and L.M.’s voices from
the audio as well. The video was dated June 14, 2012. Moreno had left L.M. alone with
defendant that day.
Moreno tried to send the video to her phone or to a mail account to keep it, but she
was unable to do that because it was so long. She remembered defendant had another
phone with an extra SD card. She removed the SD card from defendant’s phone and put

-- 3 of 27 --

4
it in a baggie, and replaced it with the one from the other phone. She knew she had to
report the video, but was afraid that the police would think she was a bad mother and take
her children away, or that they would not believe her. She was also concerned because
she was undocumented.
On July 12, Moreno took L.M. to an appointment with her doctor. (RT 981)
Moreno told the doctor about the video she had found and the doctor called the police.
(RT 983-984, 1025, 1026)
An external examination revealed no obvious sign of trauma to L.M.’s genital
area. A sexual assault forensic examination showed a narrowing of L.M.’s hymen at the
lower edge and that the outer lips were red. This finding was confirmed by a pediatrician
specializing in child abuse. There was a deep hymenal cleft that was suspicious
evidence, but not clear evidence, of some abuse.
Arrest and Interrogation of Defendant
The police viewed the sex video. They then went to Moreno’s residence where
she gave them consent to search. The police devised a ruse to get defendant to come to
the house. They had someone call defendant and tell him there had been a burglary and
he was needed to identify possibly stolen property. The police arrested defendant when
defendant arrived.
Detectives Scot Krutz and Andrew Newby transported defendant to jail. The trip
took 15 minutes and the conversation was recorded. The detectives did not question
defendant about the crime. At the station, defendant was advised of his Miranda rights
and interviewed. The interview was recorded and played at trial.
Krutz asked defendant about his phone and whether anyone else used it.
Defendant said he sometimes let a friend use it to make a call. Krutz asked defendant if
he could look at his phone and if there were any videos on it. Defendant said Krutz could
look at it, saying he had “nothing to hide,” and that there were no videos. Krutz also had

-- 4 of 27 --

5
defendant lift his shirt and display his tattoo. It said “CARLOS” above his navel. The
tattoo was photographed.
Krutz had watched the four-minute video. He saw a disabled female’s body with
her legs being held in the air. A male is standing and thrusting his penis inside her.
Portions of the video are dark and then images can be seen at the end. Audio is
continuous throughout. When the video was played at a slower speed, Krutz saw a tattoo
on the male’s abdomen.
Krutz returned to the interrogation room and told defendant, “We got a problem
you and I gotta talk about. [¶] . . . [¶] It’s a very, very serious problem.” Krutz told
defendant there was video on his phone card of him raping L.M. Defendant at first
denied it. When Krutz asked defendant why he did it, defendant responded he was “too
stoned that day,” -- stoned “on weed.” Defendant had gone into L.M.’s room to change
her diaper. After he changed her diaper, “that’s when it happened.” He pushed his penis
inside her for four or five minutes. Defendant said he had smoked marijuana and had a
shot of Patron. He claimed it had happened only once. He claimed he was “under drugs
and alcohol.” Defendant admitted he raped L.M. and knew (presumably from her
screams) that she wanted him to stop. When asked what he thought should happen next,
defendant replied, “I guess I’m going to the jail.”
Defendant wrote a letter of apology to Moreno in Spanish. He read it in English to
Krutz. Defendant wrote that he did not do it on purpose and thought it was better if they
broke up. He said it was his only mistake, but he knew it was a big one. Much of the
letter concerned instructions for Moreno to call defendant’s boss to get work and whom
to contact to collect money that was owed to defendant. He also asked Moreno to call
Imrie. After reading the letter, defendant asked when would be a good time to call an
attorney or a friend, and Krutz told him he would get a phone call at jail.
Detective Newby then questioned defendant, asking how many times he watched
the video. Defendant said never. He repeated that he was not sober and insisted it

-- 5 of 27 --

6
happened only once. Defendant told Newby he held the phone in his right hand to film
the rape.
The Defense
Defendant testified through an interpreter; he used one throughout the trial. He
declared that he considered L.M. to be his daughter and denied he took the video. He
explained why he falsely confessed. A detective (not Krutz) escorted him to the
bathroom during a break in the interrogation. That detective told him there was a very
serious video and he could spend the rest of his life in prison; it was best that he
cooperate. If he cooperated, he would be sent back to Mexico and could start his life
again and see his daughters. Defendant (falsely) admitted he had sex with L.M. because
“it’s difficult to think you’re going to spend the rest of your life in prison without seeing
your family again.” He wrote a letter to Moreno asking for forgiveness because he had
hurt her with Imrie. On cross-examination, defendant admitted he had told many lies.
DISCUSSION
I
Separate Crimes Based on Single Act of Intercourse
Defendant contends his conviction on count two, rape of a disabled person unable
to consent (§ 261, subd. (a)(1)), must be stricken because he was also convicted in count
one of forcible rape under section 261, subdivision (a)(2) based on the same act. Relying
on People v. Craig (1941) 17 Cal.2d 453 (Craig), he contends there can be only one
conviction for rape based on a single act of sexual intercourse.
“In general, a person may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct. ‘In California, a single act or
course of conduct by a defendant can lead to convictions “of any number of the offenses
charged.” (§ 954, italics added; [citations].)’ [Citation.]” (People v. Reed (2006) 38
Cal.4th 1224, 1226-1227.) Here, the question is whether defendant committed more than
one crime of rape.

-- 6 of 27 --

7
Section 261, subdivision (a) defines rape as “an act of sexual intercourse
accomplished with a person not the spouse of the perpetrator, under any of the following
circumstances . . . .” It then lists seven circumstances, including where the person is
unable to consent due to disability (§ 261, subd. (a)(1)) and where the rape is forcible
(§ 261, subd. (a)(2)). At the time of Craig, one of these circumstances was that the
victim was under 18 years of age.3 (Craig, supra, 17 Cal.2d at p. 455.) In Craig, the
defendant was convicted under two different provisions of section 261 for forcible rape
and statutory rape of a minor under the age of consent. (Craig, at p. 454.) Our high court
held: “[O]nly one punishable offense of rape results from a single act of intercourse,
though it may be chargeable in separate counts when accomplished under the varying
circumstances specified in the subdivisions of section 261 of the Penal Code.” (Id. at p.
458.) The various subdivisions did not create separate crimes.4 (Id. at p. 455.)
This court followed Craig in People v. Smith (2010) 191 Cal.App.4th 199 (Smith).
There, defendant was convicted of two counts of rape: rape of an intoxicated woman
(§ 261, subd. (a)(3)) and rape of an unconscious woman (§ 261, subd. (a)(4)). We held
there could be only one rape conviction and struck the second. (Smith, at p. 205.)
Recently, our Supreme Court considered whether a defendant could be convicted
of both oral copulation of an unconscious person (§ 288a, subd. (f)) and oral copulation
of an intoxicated person (id., subd. (i)) based on the same act. (People v. Gonzalez
(2014) 60 Cal.4th 533, 535 (Gonzalez).) The court found Craig distinguishable because
section 288a “is textually and structurally different from former section 261. Subdivision
(a) of section 288a defines what conduct constitutes the act of oral copulation.
Thereafter, subdivisions (b) through (k) define various ways the act may be criminal.
3 This offense is now “unlawful sexual intercourse” as set forth in section 261.5.
4 We reject the People’s argument that Craig was only concerned with double
punishment, not multiple crimes.

-- 7 of 27 --

8
Each subdivision sets forth all the elements of a crime, and each prescribes a specific
punishment. Not all of these punishments are the same. That each subdivision of section
288a was drafted to be self-contained supports the view that each describes an
independent offense, and therefore section 954 is no impediment to a defendant’s
conviction under more than one such subdivision for a single act.” (Gonzalez, at p. 539.)
In determining whether this case is more similar to Craig or Gonzalez, we must
determine whether the statutes under which defendant was convicted describe separate
crimes, as in Gonzalez, or only different circumstances under which (the same) rape may
be committed, as in Craig. Our focus is on whether the Legislature intended to create
separate crimes. (Gonzalez, supra, 60 Cal.4th at p. 537.) “[I]f the Legislature meant to
define only one offense, we may not turn it into two.” (Ibid.) We look first to the
language of sections 261 and 264. (Ibid.) While some of the text has changed, section
261 has not changed structurally since Craig. Its “subdivisions merely define the
circumstances under which an act of intercourse may be deemed an act of rape; they are
not to be construed as creating several offenses of rape based upon that single act.”
(Craig, supra, 17 Cal.2d at p. 455, quoted in Gonzalez, at pp. 538-539.)
Defendant considers both of his convictions in counts one and two to be solely for
violations of section 261. He contends section 264 does not establish a new and separate
crime, but instead only sets forth a separate penalty.5 The People contend that section
5 The trial court treated section 264 as an enhancement, rather than a penalty provision
or even a separate offense, and imposed the upper term of eight years for the violation of
section 261, subdivision (a)(2), adding three years under section 264, subdivision (c)(2).
Although the total sentence is correct, this methodology was flawed. California Rules of
Court, rule 4.405(3) defines an “enhancement” as “an additional term of imprisonment
added to the base term.” Subdivision (c)(2) of section 264 does not provide an additional
term to be added to the base term for rape; instead, it provides an alternative base term for
the crime of forcible rape where the victim is a minor 14 years of age or older. Thus the
language of section 264, subdivision (c)(2) shows it is not an enhancement.

-- 8 of 27 --

9
264, subdivision (c)(2) defines a separate crime of rape from that set forth in section 261.
Defendant has the better argument.
Subdivision (a) of section 264 sets forth the punishment for rape--three, six or
eight years--“[e]xcept as provided in subdivision (c).” Subdivision (b) of section 264
provides for a fine. Subdivision (c) provides the sentences for forcible rape (§ 261, subd.
(a)(2)) of a minor, which differ depending on the age of the child. The relevant
subdivision here, (c)(2), provides: “Any person who commits rape in violation of
paragraph (2) of subdivision (a) of Section 261 upon a minor who is 14 years of age or
older shall be punished by imprisonment in the state prison for 7, 9, or 11 years.” (§ 264,
subd. (c)(2).)
Subdivision (c)(2) of section 264 was added as part of the Chelsea King Child
Predator Prevention Act of 2010. (Stats. 2010, ch. 219, § 4.) “Chelsea’s Law
significantly increases the penalties for sex crimes against minors by imposing longer
determinate sentences, indeterminate sentences for some crimes, and longer parole
restrictions.” (People v. Soto (2011) 51 Cal. 4th 229, 237, fn. 4.) Nothing in the wording
of section 264, subdivision (c)(2) suggests an intent to create a new crime. (Cf. People v.
Bright (1996) 12 Cal.4th 652, 667 [§ 664 did not divide attempted murder into degrees],
overruled on another ground by People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.)
Instead, the intent was to increase punishment for forcible sex acts where the victim is a
child. (Cf. People v. Bryant (1992) 10 Cal.App.4th 1584, 1601 [intent to increase
punishment for kidnapping with intent to commit rape].)
Rather than creating a new crime, subdivision (c)(2) of section 264 “ ‘sets forth an
alternate penalty for the underlying felony itself, when the jury has determined that the
defendant has satisfied the conditions specified in the statute.’ [Citation.]” (People v.
Jones (2009) 47 Cal. 4th 566, 576.) “[A] penalty provision prescribes an added penalty
to be imposed when the offense is committed under specified circumstances. A penalty
provision is separate from the underlying offense and does not set forth elements of the

-- 9 of 27 --

10
offense or a greater degree of the offense charged. [Citations.] The jury does not decide
the truth of the penalty allegation until it first has reached a verdict on the substantive
offense charged.” (People v. Bright, supra, 12 Cal.4th at p. 661.)
We recognize that in some cases where a statute sets forth three prescribed terms,
courts have found the statute establishes a separate crime. For example, section 264.1
provides a new sentencing triad for the crime of rape in concert. Section 264.1,
subdivision (a) provides a sentence of five, seven, or nine years for any act in violation of
sections 261, 262, or 289 that is committed in concert. Subdivisions (b)(1) and (b)(2)
provide a greater triad of sentences if the victim is a child under 14 years of age or a
minor 14 or older. This court has held that section 264.1 is not an enhancement, but
establishes a separate crime for rape in concert. (People v. Best (1983) 143 Cal.App.3d
232, 236.) We found that while “section 264.1 may superficially appear to be an
enhancement,” “the section does not use the word ‘enhancement,’ nor does it set out an
‘additional term’ to be appended to a base term. It provides that the defendant ‘shall
suffer confinement’ for one of three prescribed base terms, just as other substantive
crimes prescribe three base terms.”6 (Id. at pp. 236-237.) Significantly, the Best court
also noted that section 264.1 is repeatedly referred to as a separate sex “offense” or
“violation” in both the Penal Code and the Evidence Code. (Best, at p. 237; see, e.g.,
Pen. Code, §§ 667.51, subd. (b), 667.6, subds. (c)(3) & (d)(5), 667.71, subd. (b)(3),
1203.065, subd. (a)(5), 12022.3; 12022.8; Evid. Code, §§ 782, subd. (c)(1), 1103, subd.
(c)(1), 1108, subd. (d)(1)(A).)
6 Other cases have followed this analysis of Best to find a statute setting forth a distinct
triad of sentences creates a separate crime. (See, e.g., People v. Beller (1985) 172
Cal.App.3d 904, 910-912 [former § 231.5 not an enhancement but a separate crime; later
abrogated by repeal of section 231.5 and enactment of section 212.5, which establishes
first and second degree robbery]; People v. Lozano (1987) 192 Cal.App.3d 618, 630
[§ 4532, subd. (a) establishes two separate substantive crimes].)

-- 10 of 27 --

11
We find section 264.1 distinguishable from the statute at issue here, section 264.
Section 264.1, subdivision (a) refers to “an act described in Section 261, 262, or 289,”
and then provides it is criminal and subject to a greater sentence if committed “in concert
with another.” This language creates a new crime. In contrast, section 264 generally sets
forth only the punishment for rape, and subdivision (b) speaks of a violation of section
261 or 262, indicating the crime itself is set forth in those statutes and the fact the victim
of those crimes is a minor affects only the punishment. Further, the legislative intent to
create a separate crime of rape in concert is clearly shown as the Legislature has
repeatedly referred to section 264.1 as a separate crime in several statutes. Those statutes
do not refer to section 264, or any subdivision thereof, as a separate crime. The two
provisions are eminently distinguishable.
Under Craig, defendant cannot be convicted of two counts of rape under section
261 based on a single act of sexual intercourse. The People argue Craig is
distinguishable because here the defendant was notified he was being charged with two
crimes of rape. The accusatory pleading alleged that count two was “a different offense
of the same class of crimes and offenses as charges set forth in Count One.” This
argument is specious. Only the Legislature can create crimes, not the courts (Gonzalez,
supra, 60 Cal.4th at p. 537), and certainly not prosecutors by manipulating the language
of their pleadings.
The People next contend that if we find Craig applicable--as we do--the proper
remedy is to consolidate counts one and two, rather than strike one of the counts.7 In
Craig, the two rape counts were consolidated into a single judgment, the crime of rape,
7 Defendant notes that in Smith, supra, 191 Cal.App.4th at p. 205, the court struck one of
the rape counts. However, in that case, there was no discussion of consolidation. Cases
are not authority for propositions not considered. (People v. Alvarez (2002) 27 Cal.4th
1161, 1176; People v. Watkins (2009) 170 Cal.App.4th 1403, 1409.)

-- 11 of 27 --

12
“as defined and proscribed in subdivisions 1 and 3 of section 261 of the Penal Code, and
as charged in counts 1 and 2 of the amended information, being separate statements of the
same offense.” (Craig, supra, 17 Cal.2d at p. 459.) We agree consolidation is
appropriate. We shall modify the judgment by consolidating the two counts of rape to
reflect a conviction for a single count of rape for violations of section 261, subdivisions
(a)(1) and (a)(2), with the penalty provision of section 264, subdivision (c)(2).
II
Validity of Miranda Waiver
Defendant contends the trial court erred in admitting his statement to the police, in
which he confessed to raping L.M., because he did not voluntarily, knowingly, and
intelligently waive his Miranda rights. He contends his implied waiver was not voluntary
because the police “softened him up” before questioning and trivialized the importance of
Miranda rights. He contends his waiver was not knowing and intelligent because he had
limited English skills and other education, he was unfamiliar with Miranda, he lacked
sleep and was tired during the interrogation, and he asked about a lawyer at the end of the
interrogation, showing he had not understood his rights.
A. Background
1. Defendant Transported to Jail and Interrogated
Detective Krutz took defendant into custody and transported him to the Hall of
Justice. The conversation during this transport was taped. Krutz asked defendant to “tell
me about yourself,” and they discussed defendant’s work. Defendant said he worked
every day and long hours. Krutz responded, “That’s good. Keeps you out of trouble
then, huh?” When defendant asked what he did wrong, Krutz told him, “[W]e’re going to
get to it” and “[W]e’ll talk about it.” “If you haven’t done anything wrong yet . . . [¶]
you don’t have anything to worry about, nothing at all.”
Krutz turned the discussion to defendant’s phone. Defendant had an Android
phone; Krutz said it was “nice” and he wanted one because they were “supposed to be

-- 12 of 27 --

13
super cool,” better than his “dumb-ass phone.” Defendant said he got the phone when
someone left it at a nightclub and failed to claim it.
At one point Krutz took a call and told the caller defendant spoke “good English”
and did not need a translator. Defendant said, “Maybe it will be better for me if we have
a translator.” Krutz said, “No, you don’t need a translator. We just had a conversation
for 15 minutes. We understood each other perfectly, right?” Defendant agreed.
At the station, Krutz read defendant his Miranda rights. Kurtz advised Defendant
as follows:
Krutz: “Ah, if you have -- you have the right to remain silent. Do you
understand?”
Defendant: “The what?”
Krutz: “You have the right to remain silent.”
Defendant: “Okay.”
Krutz: “Anything you say may be used against you in court. Do you understand?
Can you say yes or no.” [Defendant was nodding.]
Defendant: “Yes.”
Krutz: “Okay. You have the right to the presence of an attorney before and
during any questioning. Do you understand?”
Defendant: “Say again?”
Krutz: “You have the right to the presence of an attorney before and during any
questioning. Do you understand?”
Defendant: “Yes.”
Krutz: “If you cannot afford an attorney, one will be appointed for you free of
charge before any questioning if you want. Do you understand that?”
Defendant: “Mm-hm.”
Defendant was then interrogated and confessed to raping L.M. and videotaping the
crime.

-- 13 of 27 --

14
2. Hearing on Motions to Suppress
Before trial, defendant filed two motions to suppress his statement to the
police. The trial court held a hearing.
At the hearing, Krutz testified he and defendant engaged in “small talk” and Krutz
thought defendant’s English was “excellent.” Krutz admitted he was interested in
defendant’s phone because of the allegation, but claimed he was not thinking about the
case when talking about the phone. He wanted to keep defendant calm and therefore
cooperative. He kept talking because defendant did; often the transport rides are silent.
Defendant testified he was born and lived in Mexico until he was 18 and knew no
English when he arrived in the United States. He had never heard of Miranda rights and
claimed he did not understand all the words of the advisement. Instead of “remain silent”
he thought Krutz said “remember silent;” he confused “against you” with “again” and
had never heard the word “appoint.” If he had known his rights, defendant said he would
have exercised them. He claimed he lied when he confessed and he did so because,
during a bathroom break, a detective told him it would be better if he cooperated and
defendant thought if he confessed, he would be deported instead of going to jail.8
Defendant also testified Krutz had a gun on the table during the interrogation. Both
Krutz and his partner Newby denied there was a gun. An overhead video of the
interrogation showed only a phone on the table.
The trial court found defendant’s credibility “very much wanting” and found his
claim about the gun “wholesale prevarication.” The trial court found an implied waiver
of Miranda rights when defendant continued to talk to law enforcement after advisement.
8 This claim is refuted by the portions of the interrogation where defendant says, “I guess
I’m going to the jail,” “Please don’t tell me you gonna send me back,” and “I hate
Mexico.” The latter two statements were not played to the jury.

-- 14 of 27 --

15
The court further found defendant understood his rights and his statements were
voluntary. The court denied the motions to suppress.
B. The Law
“ ‘Under the Fifth Amendment to the federal Constitution, as applied to the states
through the Fourteenth Amendment, “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself. . . .” (U.S. Const., 5th Amend.) “In order to combat
[the] pressures [of custodial interrogation] and to permit a full opportunity to exercise the
privilege against self-incrimination, the accused must be adequately and effectively
apprised of his rights” to remain silent and to have the assistance of counsel. [Citation.]
“[I]f the accused indicates in any manner that he wishes to remain silent or to consult an
attorney, interrogation must cease, and any statement obtained from him during
interrogation thereafter may not be admitted against him at his trial” [citation], at least
during the prosecution's case-in-chief [citations].’ [Citation.] ‘Critically, however, a
suspect can waive these rights.’ [Citation.] To establish a valid waiver of Miranda
rights, the prosecution must show by a preponderance of the evidence that the waiver was
knowing, intelligent, and voluntary. [Citations.]” (People v. Nelson (2012) 53 Cal.4th
367, 374-375 (Nelson).)
“[A] suspect who has received and understood the Miranda warnings, and has not
invoked his Miranda rights, waives the right to remain silent by making an uncoerced
statement to the police.” (Berghuis v. Thompkins (2010) 560 U.S. 370, 388-389 [176
L.Ed.2d 1098, 1115].)
“Determining the validity of a Miranda rights waiver requires ‘an evaluation of
the defendant's state of mind’ [citation] and ‘inquiry into all the circumstances
surrounding the interrogation’ [citation].” (Nelson, supra, 53 Cal.4th at p. 375.)
“Ultimately, the question becomes whether the Miranda waiver is shown by a
preponderance of the evidence to be voluntary, knowing and intelligent under the totality
of the circumstances surrounding the interrogation. [Citations.] The waiver must be

-- 15 of 27 --

16
‘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.]” (People v. Sauceda-Contreras
(2012) 55 Cal.4th 203, 219.)
C. Standard of Review
We apply federal standards in determining whether defendant’s statements were
elicited in violation of Miranda. (People v. Sims (1993) 5 Cal.4th 405, 440.) We accept
the trial court’s resolution of disputed facts and its determination of the credibility of
witnesses, if supported by substantial evidence, but we independently determine whether
the challenged statement was obtained in violation of Miranda. (People v. Weaver
(2001) 26 Cal.4th 876, 918.)
D. Voluntariness
Defendant contends his waiver was not voluntary because he had been “softened
up” on the ride to the jail. He relies on People v. Honeycut (1977) 20 Cal.3d 150. In
Honeycut, an officer who knew the defendant engaged in a half-hour unrecorded
conversation with the defendant before advising him of his Miranda rights. They
discussed unrelated past events, former acquaintances, and the victim. The officer
“mentioned that the victim had been a suspect in a homicide case and was thought to
have homosexual tendencies.” (Id. at p. 158.) The officer testified that “ ‘It was my duty
to continue the efforts to try to get him to talk. And I was successful in it.’ ” (Ibid.) He
could see that defendant “ ‘was softening up.’ ” (Ibid.) Although the conversation-
warning-interrogation sequence was not expressly disapproved in Miranda, the Honeycut
court condemned “a clever softening-up of a defendant through disparagement of the
victim and ingratiating conversation.” (Id. at p. 160.)
The situation here is distinguishable. Krutz had no prior relationship with
defendant; the conversation during transport was recorded; and Krutz made no

-- 16 of 27 --

17
disparaging comments about the victim. Instead, the conversation was innocuous small
talk about defendant’s work and the relative merits of different telephones. Miranda
applies to evidence obtained during custodial interrogation. (People v. Thornton (2007)
41 Cal.4th 391, 432.) “Interrogation thus refers to questioning initiated by the police or
its functional equivalent, not voluntary conversation. [Citation.] ‘ “Volunteered
statements of any kind are not barred by the Fifth Amendment. . . .” ’ ” (Ibid.)
“[S]malltalk” is not subject to Miranda. (People v. Gamache (2010) 48 Cal.4th 347,
388.)
Defendant further contends Krutz “trivialized” his Miranda rights. Before Krutz
gave the advisements, he told defendant: “Well, you know, before we go any further, let
me -- I have to read you these so we can talk.” In People v. Musselwhite (1998) 17
Cal.4th 1216, at page 1237, our Supreme Court recognized that “evidence of police
efforts to trivialize the rights accorded suspects by the Miranda decision--by ‘playing
down,’ for example, or minimizing their legal significance--may under some
circumstances suggest a species of prohibited trickery and weighs against a finding that
the suspect’s waiver was knowing, informed, and intelligent.” There, before the officer
read defendant his rights, he commented: “Well, we don’t know what you know and
what you don't know and so, what we’d like to do is just go ahead and advise you of your
rights before we even get started and that way, that there's no problem with any of it. Is
that alright with you?” (Ibid.) The court found no misrepresentation of the importance of
Miranda rights based on the brief and accurate nature of the statement, the fact officers
never described the Miranda warning as a “technicality,” defendant’s prior police
contacts, and that he was likely aware he was a suspect in a murder investigation.
(Musselwhite, at p. 1238.)
As the excerpted portion above demonstrates, although under Musselwhite this
factor goes to show whether the waiver was knowing and intelligent, not voluntary,
defendant argues it under voluntariness. In any event, although defendant contends

-- 17 of 27 --

18
Musselwhite is distinguishable because he had no prior police contacts and did not know
why he was arrested, we do not find these allegedly distinguishable facts dispositive. In
People v. Johnson (2010) 183 Cal.App.4th 253, we found a waiver of Miranda rights
voluntary even though the officer referred to the Miranda warnings as a “technicality.”
“Referring to the process as clearing a ‘technicality’ and encouraging Holmes to talk and
ask questions did not minimize the significance of her rights or the risks of her speaking
with detectives. Holmes understood her rights and answered all of the detectives'
questions with knowledge of her rights.” (Id. at p. 294.) The same is true here. Krutz
advised defendant of his Miranda rights one by one, asking after each if he understood
and repeating them when necessary. Defendant did not ask to have his rights further
explained and he answered the detective’s questions without hesitation. Nothing
indicates defendant’s waiver of his Miranda rights was the result of “ ‘intimidation,
coercion, or deception.’ ” (People v. Sauceda-Contreras, supra, 55 Cal.4th at p. 219.)
Moreover, we do not read Krutz’s remarks as “trivializing” the Miranda rights. Rather,
he indicated their importance by telling defendant he could not talk to him about a crime
until defendant was advised of his rights, explaining that is why he did not discuss the
charges in the car.
E. Knowing and Intelligent
Defendant contends his waiver was not knowing and intelligent because he had
both limited English skills and limited education, he was unfamiliar with Miranda, and
he was tired from working all night. Further, he contends his questions about contacting
an attorney at the end of the interrogation indicate he did not understand his right to an
attorney.
The trial court found defendant’s English was adequate to understand his rights
and substantial evidence supports that finding. At no time during the ride to the jail or
during the interview did defendant indicate he did not understand what was being said to
him. He answered affirmatively when asked if he understood each right and answered all

-- 18 of 27 --

19
questions. He did suggest a translator might be “better,” but agreed with Krutz that they
could understand each other. While at the hearing he claimed he misunderstood several
portions of the Miranda advisements, his credibility as to what happened during the
interrogation had been seriously compromised by his blatant lie about a gun being on the
table as well as having been told he could go back to Mexico if he gave a false
confession. It is true that defendant put his head down and rested during breaks in the
interrogation, but the video tape shows him alert during the advisement and questioning.
Tellingly, defendant never indicated he was too tired to understand what was happening
or that he needed to rest. Defendant’s questions about the time to call an attorney (or
friend) came only after he confessed and was told he was going to jail. The trial court
reasonably interpreted these questions as signaling defendant’s realization that he was
about to be charged with the rape of Moreno’s disabled child.
Here a preponderance of the evidence showed that defendant’s waiver of his
Miranda rights was voluntary, knowing, and intelligent. (Nelson, supra, 53 Cal.4th at pp.
374-375.)
III
Adequacy of Miranda Advisement
Defendant contends the trial court erred in admitting his statement to the police
because he was not given a valid advisement of his Miranda rights. Specifically, he
contends the advisement Detective Krutz gave him was inadequate because Krutz told
him only that he had the right to the “presence” of an attorney, not the right to “consult”
with an attorney. He argues the advisement was inadequate because a reasonable suspect
would not understand the right to the presence of an attorney includes the right to consult
with the attorney. We disagree and find no inadequacy in the Miranda advisement.
Kurtz advised defendant in part: “You have the right to the presence of an
attorney before and during any questioning. Do you understand?” Defendant said, “Say

-- 19 of 27 --

20
again?” and Krutz repeated, “You have the right to the presence of an attorney before and
during any questioning. Do you understand?” Defendant said, “Yes.”
In the landmark Miranda case, the United States Supreme Court held “the right to
have counsel present at the interrogation is indispensable to the protection of the Fifth
Amendment privilege under the system we delineate today.” (Miranda, supra, 384 U.S.
at p. 469 [16 L.Ed.2d at p. 721].) “Accordingly we hold that an individual held for
interrogation must be clearly informed that he has the right to consult with a lawyer and
to have the lawyer with him during interrogation under the system for protecting the
privilege we delineate today.” (Id. at p. 471 [16 L.Ed.2d at p. 722].) The high court
summarized the advisement that must be given to an individual taken into custody: “He
must be warned prior to any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.” (Id. at p. 479 [16 L.Ed.2d at p. 726]
(italics added).)
Miranda warnings “need not be presented in any ‘precise formulation’ or
‘talismanic incantation.’ [Citations.] ‘Reviewing courts . . . need not examine Miranda
warnings as if construing a will or defining the terms of an easement. The inquiry is
simply whether the warnings reasonably “conve[y] to [a suspect] his rights as required by
Miranda.” ’ [Citation.]” (People v. Kelly (1990) 51 Cal.3d 931, 948-949.) In People v.
Wash (1993) 6 Cal.4th 215, our Supreme Court rejected the argument that an advisement
that defendant had the right to an attorney before questioning was inadequate to convey
the right to have an attorney present during questioning. The court was “not persuaded--
as defendant's argument implies--that the language was so ambiguous or confusing as to
lead defendant to believe that counsel would be provided before questioning, and then
summarily removed once questioning began.” (Id. at p. 236.)

-- 20 of 27 --

21
Here too, the advisement was not so ambiguous or confusing that a reasonable
defendant would believe that although he had the right to the presence of an attorney, he
had no right to consult with that attorney. As the trial court noted, it would be
unreasonable to conclude the attorney was there only “to play the role of the potted
plant.” The Miranda decision itself demonstrates that the right to the presence of an
attorney is generally understood to include the right of consultation with that attorney. In
summarizing the rights that must be communicated before questioning, the court referred
to “the right to the presence of an attorney.” (Miranda, supra, 384 U.S. at p. 479 [16
L.Ed.2d at p. 726], italics added.) The high court has subsequently referred to this right
as the right to “presence” of counsel. “In order to be able to use statements obtained
during custodial interrogation of the accused, the State must warn the accused prior to
such questioning of his right to remain silent and of his right to have counsel, retained or
appointed, present during interrogation.” (Fare v. Michael C. (1979) 442 U.S. 707, 717
[61 L.Ed.2d 197, 207].)
V
Admission of Photographs of Defendant’s Altered Tattoo and CALCRIM No. 371
Defendant contends the trial court erred in admitting evidence of photographs
taken on June 11, 2013, of the tattoo on his abdomen, which showed the tattoo had been
partially obliterated. He contends the court further erred in instructing the jury with
CALCRIM No. 371 that an attempt to hide evidence may show awareness of guilt.
Defendant contends the photographs were irrelevant because their only possible
relevance was to show a consciousness of guilt due to the attempt to change his tattoo.
Defendant contends “no rational juror” could have concluded that defendant intended to
hide evidence because he knew that photographs of his tattoo had already been taken.
A. Background
On July 12, 2012, when Detective Krutz interviewed defendant, he asked to see
the tattoo on defendant’s abdomen and took pictures of it. The tattoo spells out

-- 21 of 27 --

22
“CARLOS” above defendant’s navel in fancy script; the detective believed defendant’s
tattoo was similar to that of the rapist in the video.
Additional photographs of defendant’s abdomen and tattoo were taken a year later
on June 11, 2013. In these photographs, defendant’s tattoo is blurred and the skin
appears irritated. The People argued defendant was attempting to alter his tattoo to
remove a key piece of evidence of his identity. The defense objected to introduction of
these photographs because defendant’s tattoo had already been documented at the time of
his arrest. The trial court ruled the photographs were admissible to show consciousness
of guilt. The parties stipulated the photographs were true and accurate depictions of
defendant’s abdomen.
At trial, defendant testified he tried to remove the tattoo because in jail he was told
the tattoo was gang-related. He was not trying to destroy evidence.
The court instructed the jury with CALCRIM No. 371: “If the defendant tried to
hide evidence, that conduct may show that he was aware of his guilt. If you conclude
that the defendant made such an attempt, it is up to you to decide its meaning and
importance. However, evidence of such an attempt cannot prove guilt by itself.”
B. Relevance of June 2013 Photographs
Only relevant evidence is admissible. (Evid. Code, § 350.) “The test of relevancy
is whether the evidence tends, logically, naturally, or by reasonable inference to establish
a material fact, not whether it conclusively proves it. [Citation.]” (People v. Yu (1983)
143 Cal.App.3d 358, 376.) Evidence of a change in appearance can be relevant to show
defendant’s consciousness of guilt. (People v. Randle (1992) 8 Cal.App.4th 1023, 1036;
see also People v. Cunningham (2001) 25 Cal.4th 926, 1001.)
Defendant contends the altered tattoo did not show consciousness of guilt. He
relies on People v. Fritz (2007) 153 Cal.App.4th 949. In Fritz, the appellate court held it
was error to admit defendant’s false statement that he had never been involved in
shoplifting to show defendant’s consciousness of guilt because the lie did not relate

-- 22 of 27 --

23
directly to the crime charged. (Id. at pp. 957-958.) Defendant contends the alteration of
his tattoo does not show consciousness of guilt because he knew the police had already
taken a picture of his unaltered tattoo the day he was arrested.
Defendant’s contention is premised on the assumption that he would act only
logically. This assumption is unwarranted, as demonstrated by his actions in this case.
Defendant taped and kept a video of his serious, violent crime; he lied multiple times,
often about things--such as the police displaying a gun during his interrogation--that were
easily proved false. Although defendant offered an innocent explanation for his altering
his tattoo, “it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends.” (People v. Maury (2003) 30 Cal.4th 342, 403.) That there was conflicting
evidence as to whether the altered tattoo showed consciousness of guilt goes to the
weight of the evidence, not its admissibility. (See People v. Barney (1992) 8 Cal.App.4th
798, 812 [possible bias of expert went to weight to be attributed to evidence, not its
admissibility].) The trial court did not err in admitting the June 2013 photographs of
defendant’s tattoo.
C. Propriety of Giving CALCRIM No. 371
“ ‘It is an elementary principle of law that before a jury can be instructed that it
may draw a particular inference, evidence must appear in the record which, if believed by
the jury, will support the suggested inference. [Citation.] [¶] Whether or not any given
set of facts may constitute suppression or attempted suppression of evidence from which
a trier of fact can infer a consciousness of guilt on the part of a defendant is a question of
law. Thus in order for a jury to be instructed that it can infer a consciousness of guilt
from suppression of adverse evidence by a defendant, there must be some evidence in the
record which, if believed by the jury, will sufficiently support the suggested inference.’
[Citation.]” (People v. Hart (1999) 20 Cal.4th 546, 620.) It is proper to give a
consciousness of guilt instruction if there is some evidence that defendant destroyed or

-- 23 of 27 --

24
concealed evidence; the evidence need not be conclusive. (People v. Williams (1996) 46
Cal.App.4th 1767, 1780 [police unable to find shoes defendant wore that day, reasonable
to assume he hid them].)
Defendant knew the police considered his tattoo significant as they photographed
it the day he was arrested. It is uncontested that he later altered the tattoo, apparently
attempting to obliterate it. Although there were differing explanations as to why he did
this, one reasonable inference was that he was trying to hide identity evidence. Since
there was evidence to support giving the instruction, there was no error.
V
Admission of Evidence Defendant Made a Sex Tape with Imrie
Defendant contends the trial court abused its discretion in admitting evidence that
he had a sex tape of him and Imrie. He contends the evidence had limited probative
value and was greatly prejudicial because it suggested deviant behavior and may have
made the jury less inclined to believe him.
A. Background
Prior to trial, the defense objected to the entire contents of defendant’s SIM card
being admitted or shown to the jury. The People indicated they intended to introduce
some of the photos, such as family pictures, but not the “large quantity of pornographic
material.” The prosecutor offered that she and defense counsel attempt to reach an
agreement; if they were unable to, they would involve the court.
On cross-examination, the People asked defendant if he made a sex tape with
Imrie. The defense objected on the basis of relevance. After a bench conference, the trial
court overruled the objection. Defendant answered yes; he took the video with his
personal cell phone in the bathroom of the restaurant where he worked.
The parties later put the contents of the bench conference on the record. They
referred to an earlier discussion in chambers that is not part of the record. The defense
argued the video was not relevant. The People argued evidence that defendant had

-- 24 of 27 --

25
recorded the video on his phone was relevant to show the SIM card was his and that he
knew how to record a sex video with his phone, and to show defendant lied to Imrie when
he told her that video was the only one on his phone. The trial court concluded it was
“fair game” to bring up the video; it was not cumulative. The court found the video was
prejudicial, but its probative value outweighed the prejudice.
B. The Law and Analysis
Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” “A trial court is
vested with wide discretion in deciding the relevancy of evidence. [Citation.] Further, it
is the exclusive province of the trial court to determine whether the probative value of
evidence outweighs its possible prejudicial effect. [Citation.] On appeal, the court’s
exercise of such discretion will not be disturbed absent a clear showing of abuse.
[Citations.]” (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.)
We find no abuse of discretion in admitting the evidence that defendant made the
sex video with Imrie. As defendant concedes, the evidence was probative to show the
SIM card, on which Moreno found the video of L.M. being assaulted, was defendant’s. It
was also probative to show defendant knew how to make a sex video with his phone.
Finally, it had some probative value as to defendant’s credibility to show he lied to Imrie.
Although the probative value was not great, the trial court did not abuse its discretion in
finding the probative value was not substantially outweighed by the possibility of undue
prejudice. We find the prejudicial effect less than defendant asserts. The video was not
shown to the jury and the evidence concerning it was brief, only three questions.
Defendant contends the evidence of the video made the jury less inclined to believe him.
It is much more likely that the evidence of defendant’s multiple lies, and the

-- 25 of 27 --

26
improbability of his claim of innocence given the strength of the evidence against him,
destroyed his credibility.
Further, any error would be harmless. We reject defendant’s argument that
admitting the brief evidence of the sex video rendered the trial unfair so as to constitute
constitutional error. In general, “the mere erroneous exercise of discretion under such
‘normal’ rules does not implicate the federal Constitution.” (People v. Cudjo (1993) 6
Cal.4th 585, 611.) The applicable standard of prejudice for state law error, as set forth in
People v. Watson (1956) 46 Cal.2d 818, at page 836, is that the error is harmless if it does
not appear reasonably probable the verdict was affected. (Cudjo, at p. 611.) Here, the
evidence against defendant was very strong. He confessed to raping L.M. and the crime
was captured on a video found on the SIM card of defendant’s cell phone. Moreno
identified defendant as the perpetrator in the video, and that identification was
corroborated by the similarity of the perpetrator’s tattoo to that of defendant.
Defendant argues his confession “could be explained away as the result of
Detective Newby’s suggestion that he could escape a life sentence in prison if he
confessed.” Defendant ignores that his credibility on this point was severely weakened
because he did not report this conversation until the suppression hearing, and he
demonstrably lied about other coercive police tactics, such as the claim there was a gun
displayed on the table during the interrogation. He contends Moreno’s testimony about
finding the video on his SIM card and her identification of him in the video is suspect
because she had a motive to lie due to his infidelity with Imrie. While Moreno may have
had a bias against defendant, he offers no plausible explanation as to how she framed him
by placing the incriminating video, which included extensive recognizable sounds, on his
SIM card.

-- 26 of 27 --

27
VI
Pretrial Custody Credits
Defendant contends the trial court erred in awarding him 464 days of presentence
custody credits. The People properly concede that his credits equaled 472 days.
Defendant receives credit upon his term of imprisonment for all days of custody
prior to sentencing. (§ 2900.5.) He receives credit for the day of sentencing. (People v.
Smith (1989) 211 Cal.App.3d 523, 525-527.) Defendant was arrested on July 12, 2012,
and was sentenced on August 26, 2013. He had 411 days of actual credit. Because
defendant was convicted of forcible rape, a violent felony (§ 667.5, subd. (c)(3)), he
receives conduct credit of only 15 percent. (§ 2933.1.) He had 61 days of conduct credit,
for total presentence credit of 472 days.
DISPOSITION
The judgment is modified to consolidate count two into count one, to reflect that
defendant was convicted of one count of violating section 261, subdivisions (a)(2) and
(a)(1), with the penalty provision of section 264, subdivision (c)(2); to vacate the
conviction on count two; and to award defendant 472 days of presentence conduct credit.
As so modified, the judgment is affirmed. The trial court is directed to prepare an
amended abstract of judgment to reflect these modifications and to forward a certified
copy to the Department of Corrections and Rehabilitation.
DUARTE , J.
We concur:
HULL , Acting P. J.
MAURO , J.

-- 27 of 27 --