People v. Arteaga CA4/3 ( 2021 )

Filed 12/1/21 P. v. Arteaga 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, G059174
v. (Super. Ct. No. 18NF3073)
VICTOR HUGO ARTEAGA, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
This is an appeal from a jury trial in which appellant was represented by
counsel. We take the facts from the brief filed on appellant’s behalf by his attorney; they
seemed to us to be the best face that could be put on appellant’s case, and they
demonstrate rather clearly why counsel was unable to find an issue to argue in appellant’s
behalf:
“In August of 2018, Kelly C. (‘Kelly’) was fourteen years old. Her mother
and father lived separately, and Kelly C. alternated between them. She frequently left
home without her parents’ permission.
“She met appellant sometime in May 2018 at a park in Anaheim. She was
with Abby, her 15 or 16-year-old friend. Kelly told appellant that she was 14 years old,
but later, at Abby’s urging, Kelly said she was 15 years old. Abby told Kelly that
appellant was thirty-five years old.
“During August of 2018, Kelly used methamphetamine on a daily basis.
Kelly would occasionally use methamphetamine with appellant.
“Kelly recalled a day in August of 2018 when she snuck out of her father’s
house. She planned to meet Abby and appellant to smoke methamphetamine. Appellant
met Kelly outside her father’s house. As they were leaving, her father confronted Kelly.
After a brief argument with her father, Kelly left and met appellant a few blocks away.
“As they walked to the park, appellant told Kelly to come with him behind
a dumpster. Appellant suggested they hide in case the ‘cops were going to pass by.’ At
appellant’s request, Kelly orally copulated him behind the dumpster.
“The two of them continued walking around as they tried to find their
friends. They rested at a laundromat inside an apartment complex. The owner of the
laundromat told them to leave, so they walked to another laundromat in another complex
on Wakefield. Appellant made a bed on the floor with some blankets. They laid down
next to each other, and appellant started touching Kelly’s legs, and began to ‘finger’ her,
placing his fingers inside her vagina. At his suggestion, Kelly orally copulated appellant
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again. The two of them had sexual intercourse. She was not forced to engage in any of
these sexual acts.
“After having sexual intercourse, they slept through the night and woke up
the next morning. Kelly did not tell anyone what had happened that day with appellant.
“On October 12, 2018, some police officers came to her mother’s apartment
and showed her a picture of appellant. Kelly identified appellant as the person she had
sexual intercourse with. On October 25, 2018, Kelly spoke with a social worker at
CAST. Kelly admitted telling the social worker that she attended a party and she told
everyone that she was 17-years old. Kelly lied in her interview with police and social
worker when she said she had stopped using methamphetamine. Kelly was still using
methamphetamine at the time of the interviews.
“On November 6, 2018, City of Anaheim Police Officer Long Cao (‘Cao’)
interviewed appellant at the Anaheim Detention Facility in the City of Anaheim. The
interview was recorded by Cao’s body camera. The videotape of the recorded interview
was played for the jury.
“Appellant told Cao that when he met Abby and Kelly, he thought they
were both fifteen. Appellant admitted orally copulating and having sexual intercourse
with Kelly at the laundromat. Appellant stated that the sexual activities were Kelly’s
idea.1
“The CAST interview was played for the jury.2 In the interview, Kelly
described the incident at the dumpster where she performed oral copulation on appellant.
She also described the incident at the laundromat where appellant put his fingers in her
vagina, she performed oral copulation, and they had sexual intercourse. Kelly did not
believe that appellant ejaculated inside of her.
1 The transcript of the interview (Exhibit 1) appears in the clerk’s transcript.
2 The transcript of the CASE interview (Exhibit 2A) is in the clerk’s transcript.
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“Kelly said she told appellant that she was 15-years old. She told other
friends that she was 17-years old to obtain dope. At one point, she claimed she told
appellant that she was not yet fourteen.
“The parties stipulated that Kelly had committed assault on a school
campus on October 19, 2017 and made criminal threats on October 9, [2018].”
DISCUSSION
Arteaga filed an appeal, and we appointed counsel to represent him on that
appeal. Counsel filed a brief which fully set forth the facts of the case, set out above,
which did not differ in significant detail from the facts we found in the record. As noted,
we have adopted that as our own for purposes of this opinion. Counsel did not argue
against her client but advised the court she could find no issues to argue on his behalf.3
Appellant was invited to express his own objections to the proceedings against him but
did not. Under the law, this put the onus on us to review the record and see if we could
find any issues that might result in some kind of amelioration of appellant’s lot. (People
v. Wende (1979) 25 Cal.3d 436 (Wende).) It should be emphasized that our search was
not for issues upon which appellant would prevail, but only issues upon which he might
possibly prevail.
We have examined the record and found no arguable issue. This is not
surprising. In fact, it is what we find in the vast majority of cases in which appellate
counsel files a Wende brief. Even the most cynical observer of the legal system would
have to recognize that appellate counsel has a financial incentive for finding issues. The
simple matter is counsel makes more money if he/she finds an issue that is arguable than
if he/she does not. So while it sometimes happens that an appellate court will find issues
after appellate counsel has thrown in the towel, it is unusual.
3 Appellate counsel had already found and corrected a discrepancy between the 16-month term the
court had imposed and suspended and the two-year term erroneously reflected in the minute order.
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This case is not unusual – at least not in any way that benefits appellant.
The case against him was pretty much overwhelming, but that is the only thing
remarkable about it. Appellate counsel considered and rejected the possibility of
attacking the sufficiency of the evidence, and we can certainly see why. The evidence
was not only considerably greater than the legal standard requires, it was more or less
irrefutable. Appellant confessed to some of the crimes he is charged with, contending
only that it was his victim’s idea.
We are unable to find any flaw in the police conduct which led to
appellant’s admissions. Appellant was 35 years old, had no problems with the language,
and was properly Mirandized (Miranda v. Arizona (1966) 384 U. S. 436). While his trial
counsel tried valiantly to find flaws in what was said to appellant about the use of force in
the crimes, the police did not go beyond the bounds of appropriate interview technique.
His statements were admissible.
Nor can we find any problem with the instructions. While appellate
counsel considered contesting the court’s refusal to instruct the jury with CALCRIM No.
3406 (mistake of fact), mistake about the victim’s age is not a defense to a completed
violation of the charges in this case; it could apply only to attempts. There was no
testimony from which the jury could infer an attempt here so the instruction was inapt.
We have looked at appellate counsel’s reference to People v. Duenas
(2019) 30 Cal.App.5th 1157, and find no error. The trial court imposed minimum fines
and offered to hear evidence about appellant’s financial condition, either at sentencing or
when appellant is released from custody. Appellant made no request to offer evidence at
sentencing; the postrelease offer remains available.
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Our own review of the record leads us to concur with appellate counsel:
there is no arguable issue on appeal. The conviction is affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
GOETHALS, J.
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