People v. Callender CA4/3

Filed 2/1/22 P. v. Callender CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G059527

v. (Super. Ct. No. 16NF2748)

ARTHUR WILLIAM ROBERT OPINION CALLENDER,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Andre Manssourian, Judge. Affirmed. Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Genevieve Herbert, Deputy Attorneys General. * * *

A jury found appellant Arthur William Robert Callender guilty of two counts of sexual intercourse with a child 10 years of age or younger, in violation of Penal Code section 288.7, subdivision (a), and he was sentenced to 50 years to life in state prison. He appeals, contending the trial court prejudicially erred in denying his pretrial motion to exclude his confession of sexual penetration, which he argued was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). As discussed below, because appellant’s statements were not made during a custodial interrogation, we affirm the judgment. I FACTUAL AND PROCEDURAL BACKGROUND A. Motion to Exclude PreMirandized Statements Before trial, appellant moved to exclude statements he made to law enforcement before he was provided Miranda advisements. He argued he made the statements in a custodial setting because he did not believe he could leave after the officers had shown him their badges and taken him “outside the comfort of the home onto the patio.” The District Attorney argued there was no custodial interrogation because the officers were friendly and nonconfrontational, told appellant he was free to leave multiple times, and never restricted his movement. The trial court denied the motion, concluding appellant was not in custody during the interrogation. B. Prosecution Evidence The victim’s mother testified that, in May 2016, she was living together with her husband, their three children, her in-laws, and several family relatives, including her sister-in-law. During that time, appellant had been dating her sister-in-law for almost three years. Appellant regularly visited and became so close to the family that they trusted him to babysit her daughter, the two-year-old victim, on two occasions in August 2016.