P. v. Navarette CA2/8

Filed 6/17/13 P. v. Navarette CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B244604

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA070334) v.

EDUARDO NAVARETTE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Susan M. Speer, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Eduardo Navarette challenges his conviction for oral copulation of a child under 10 and child molestation. His sole claim on appeal is that Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and its progeny required excluding his statements made to officers during custodial questioning. We disagree and affirm. FACTS AND PROCEDURE On multiple occasions, when C.C. was six or seven years old, defendant put his penis and tongue in or around C.C.‟s vagina. Defendant removed C.C.‟s and his underwear and clothing. In a tape-recorded interview played for jurors, defendant admitted to touching C.C.‟s vagina, “tapping” his “thing” to her “thing,” and putting his mouth on her vagina. Defendant denied putting his penis inside C.C.‟s vagina. Defendant was convicted of two counts of oral copulation on a child under 10 (Pen. Code, § 288.7, subd. (b)) and two counts of child molestation (§ 288, subd. (a)). For the oral copulation counts, defendant was sentenced to two concurrent prison terms for 15 years to life. Defendant was sentenced to two 6-year prison terms for the child molestation counts, but both were stayed pursuant to section 654. DISCUSSION The sole issue on appeal is whether defendant‟s tape-recorded statements should have been excluded under Miranda. “Although there is a threshold presumption against finding a waiver of Miranda rights [citation], ultimately the question becomes whether the Miranda waiver was knowing and intelligent under the totality of the circumstances surrounding the interrogation.” (People v. Cruz (2008) 44 Cal.4th 636, 668 (Cruz).) As we explain, we find no violation of Miranda. 1. Background On March 12, 2011, Officer Jason Goode read defendant his Miranda rights and asked defendant if he wanted to speak. Defendant refused to speak. Officer Goode did not ask defendant any additional questions. On March 14, 2011, Detectives Pam Pitcher and Nanette Toosbuy spoke to defendant. They first asked him general questions about his family and background. They gave him no Miranda advisement prior to asking these questions. After about one-