Friday, July 13, 2018
Accused Child Molester’s Counsel Should Have Argued Miranda—C.A.
By a MetNews Staff Writer
The Fourth District Court of Appeal yesterday reversed the conviction of a man for molesting a five-year-old girl, holding that he had ineffective assistance of counsel based on his attorney failing to bring a motion to suppress his confession, elicited by police officers without Mirandizing him.
Antonio Torres, 73, was convicted by a jury of two counts of lewd acts with a minor under 14 years old and sentenced by San Diego Superior Court Judge K. Michael Kirkman to eight years in prison. His counsel on appeal pointed out that a suppression motion should have been brought.
Justice Gilbert Nares of Div. One wrote the opinion, which focuses on whether Torres’ interrogation was custodial, thus requiring the Miranda warnings. He wrote:
“We conclude that while the interrogation was not custodial when it began, the totality of the circumstances show that it became custodial, and Torres should have received Miranda warnings when the detectives essentially told Torres that they would not leave, and he could not go home, until Torres told them the truth based on the evidence they had against him.”
Two San Diego Police officers went to where Torres lived about two weeks after the couple he had previously been staying with reported the alleged abuse to them.
The officers told Torres he was not under arrest and invited him into their car, where they told him the child had recounted. He obliged when asked for a saliva sample, and was then told that his DNA was being tested, in the trunk of the police car, to see if it matched a semen sample from the person of the alleged victim.
“The detectives’ statements to Torres, when examined with the nature of the interrogation and the totality of the circumstances, created a custodial situation. A reasonable person in Torres’s position—believing that a DNA test was running in the trunk and essentially being told he could not leave until he told the detectives what they claimed they could already prove—would not have felt at liberty to terminate the interrogation, open the car door, and leave.”
Nares recited that where a defendant claims ineffective assistance of counsel based on failure to make a suppression motion, the burden is presented of demonstrating that the motion would have been “meritorious and there is a reasonable probability the verdict would have been different had defendant prevailed on the motion.”
He said that “Torres’s statements during the police interview likely resolved any doubts jurors had regarding” the alleged victim’s questionable credibility.
The justice declared that Torres’s statements to the officers “were crucial to the prosecution” and had a suppression motion been made, it would, in probability, have been granted.
“There is also a reasonable probability that the outcome of the trial would have been more favorable to Torres if his statements to police had been excluded,” Nares added. “Stated differently, defense counsel’s deficient performance undermines our confidence in the outcome of this case.”
The case is People v. Torres, D072610.
Torres was represented on appeal by Arielle Bases of Bases & Bases in Encino, who was appointed by the Court of Appeal. The People were represented by Deputy Attorneys General Felicity Senoski and Joseph Anagnos.
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