People v. Melendez CA1/1

Filed 8/8/14 P. v. Melendez CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A140048 v. OMAR MEJIA MELENDEZ, (San Mateo County Super. Ct. No. SC076673A) Defendant and Appellant.

In this matter we are asked to review the trial court’s ruling on the admission of statements made by defendant to police. Defendant challenges the statements based on violations of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and voluntariness. We have reviewed the challenged interrogation in this instance and, like the trial court, we find no violation of defendant’s rights under either principle. We therefore affirm. STATEMENT OF THE CASE On August 29, 2013, a jury found defendant guilty of 24 counts of lewd and lascivious conduct with a child under 14 years of age. (Pen. Code, § 288, subd. (a).) On October 16, 2013, the trial court sentenced defendant to 24 years in state prison. Defendant timely appealed. STATEMENT OF FACTS During 2009, after coming to the United States from Honduras, defendant moved into the home of his cousin, U., and his cousin’s family in Daly City, California. At the time, U. was married to Mrs. C., and they had two children, C.C. and D.C. The youngest,

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D.C., was born in April 2001 and she was nine years old when defendant began to live with the family. Defendant lived in this home for approximately two years. Mrs. C. worked at her job three days a week and U. worked seven days a week. During this two-year period, defendant would often watch the two children after school while the parents were at work. At no time did Mrs. C. observe any inappropriate behavior between defendant and D.C., nor did the mother note her daughter was uncomfortable when defendant was also present. A short time after defendant began living in the home, he showed to D.C. a video on his cell phone in which a naked man and woman have sexual relations. D.C. mentioned this event to her parents. U. confronted defendant and asked to review the cell phone, but the father saw no such film on the device. Shortly after this incident, defendant began to fondle and touch D.C. when she came home from school. As D.C. related, he would touch her in any place he wanted, including her breasts and vagina. Sometimes, defendant would invite both D.C. and C.C. into his bedroom so he could play with the children with the lights turned off. He indicated he had hidden money in the room and they should try finding it in the dark. While the two children searched the darkened room, defendant would fondle D.C. in her private areas under her clothing. This conduct made D.C. feel very uncomfortable. In addition, there were times when defendant would kiss D.C. on the mouth and suck on her breasts when the two were alone in his room. The sucking caused discomfort to the minor. She also disliked kissing defendant. On at least one occasion, C.C., while playing the “look for money” game in the dark, heard the sound of defendant kissing D.C. on the mouth. The boy told one of his uncles about this and the uncle asked D.C. what was happening in defendant’s room. The uncle accused D.C. of allowing defendant to kiss her.