Filed 5/12/17 P. v. Fuimaono 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

CHEYENNE MATEO FUIMAONO,

Defendant and Appellant.


G052281

(Super. Ct. No. 12CF3489)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

Cheyenne Mateo Fuimaono appeals from a judgment after a jury convicted him of first degree murder, assault on a child with force likely to produce great bodily injury resulting in death, and child abuse. Fuimaono argues the trial court erred by admitting his statements in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and insufficient evidence supports his conviction for assault on a child with force likely to produce great bodily injury resulting in death. Additionally, Fuimaono requests we review the transcript of the in camera hearing on his motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). As we explain below, Fuimaono’s contentions are meritless, and our review of the in camera hearing transcript reveals no procedural irregularities.
FACTS
M.P.’s Death
Ashley Williams and her 18-month-old son M.P. began living with Fuimaono at his mother’s home in November 2012. Fuimaono cared for M.P. while Williams attended college.
One morning, Williams went to class, and Fuimaono cared for M.P., who had no injuries to his body. That afternoon, City of Buena Park (Buena Park) officer Ronald Catanzariti responded to Fuimaono’s 911 call. When Catanzariti arrived, Fuimaono was hysterical and crying. Fuimaono led Catanzariti into a bedroom, where M.P., who was unconscious and unresponsive, was lying on the floor. M.P. had no pulse and was not breathing, but he was warm to the touch so Catanzariti performed CPR. Paramedics arrived and took M.P. to the hospital.
When they arrived at the hospital, M.P. was alive but in respiratory distress. After emergency surgery, doctors resuscitated M.P., but his brain stem was not functioning properly. M.P. was transported to Children’s Hospital of Orange County (CHOC), where he was declared brain dead. Sandra Murray, a child abuse pediatrician, noticed injuries on M.P.’s arm that were consistent with bite marks.
An autopsy later revealed scars on his arms that were consistent with bite marks, and hemorrhages on his leg and wrist. The autopsy also revealed a bruise under M.P.’s jaw that was consistent with hypoxic smothering. Dr. Etoi Davenport, the forensic pathologist, opined the cause of death was “suffocation-type asphyxia.”
Fuimaono’s Initial Statements
At his house, Fuimaono told Catanzariti that he was watching M.P. for the day. Fuimaono said that around 1:15 p.m., M.P. was in the bedroom with a sippy cup and appeared to be fine. M.P. looked to be asleep, and Fuimaono removed the sippy cup and went to the kitchen to make lunch. A few minutes later, Fuimaono returned to the bedroom and M.P. had vomited on the floor and was unconscious and unresponsive. Fuimaono told Catanzariti that while he was on the telephone with the 911 operator, he performed CPR on M.P.
At CHOC, M.P.’s father assaulted Fuimaono and CHOC security officers placed Fuimaono in a sixth floor conference room for his protection. An officer, a doctor, and a detective interviewed Fuimaono in this unlocked conference room.
Fuimaono told Buena Park sergeant Kevin Franklin that he tried to feed M.P. a banana, but he threw it on the floor. When Fuimaono gave M.P. a sippy cup with chocolate milk-flavored water (chocolate water), M.P. threw it on the floor and cried. Fuimaono said M.P. “crie[d] a lot.” Fuimaono went to the kitchen, and when he returned, he found M.P. unresponsive and began performing CPR. When Franklin asked Fuimaono about the bite marks on M.P.’s arm, he said a few weeks earlier, a
two-year-old child bit M.P. on the arm at Chuck E. Cheese’s.
Fuimaono told Murray he got frustrated with M.P. when he kept throwing food on the floor. He also said that when he returned from the kitchen, M.P. was wrapped in blankets and was not breathing.


Fuimaono’s Recorded Interviews
First Interview
Buena Park detective Sergio Lepe interviewed Fuimaono in the CHOC conference room in the early morning hours on December 1, 2012; the interview lasted about two hours. Franklin, who was dressed in his police uniform, was also present. Lepe told Fuimaono that he was not under arrest and was secluded from M.P.’s biological father and other men for his own protection. Fuimaono stated he gave M.P. chocolate water around 8:30 a.m. or 9:00 a.m. He tried to feed him a banana, but M.P. smeared it into the floor. Fuimaono said M.P. was spoiled and cries a lot. Fuimaono went to the kitchen to make another chocolate water and gave it to M.P. in a sippy cup. M.P. laid down in his bed, and Fuimaono pulled the covers over him. M.P. started thrashing under the covers, but Fuimaono thought it was normal and went to the kitchen. When Fuimaono returned, M.P. was completely still and Fuimaono picked him up but he was limp. Fuimaono performed a few chest compressions and called 911.
When Lepe asked, Fuimaono stated he was 6’4” tall and weighed 300 pounds. After he retold his version of what happened, Fuimaono admitted he held M.P. and covered his mouth and nose with his hand, although he stated M.P. could still breathe. When M.P. bit Fuimaono’s hand, Fuimaono admitted he “popped [M.P.] in the chin.” Fuimaono said he “lashed out at him through anger.” He stated he wrapped M.P. in a sheet, but when he returned from the kitchen, he noticed it was tangled around his throat and he was “thrashing.” Fuimaono told himself to immediately get the cover off M.P. so he could breathe. Fuimaono admitted he thought, “I’m gonna go to jail because I . . . killed him.” Fuimaono stated that when he saw M.P. thrashing around in the sheet, “Every fiber of my being was saying get him out of that fuckin’ cover now. Don’t fuckin’ do anything else. Get him out of the fuckin’ cover. And I didn’t because I thought he would like -- something in my mind was telling me he’s gonna be okay. Just go and get his food. And I don’t know why, but I was just listening to that for some odd reason or another . . . .”
Second Interview
Lepe interviewed Fuimaono again at the police station a few hours later, at approximately 6:00 a.m. Lepe advised Fuimaono of his Miranda rights, and Fuimaono waived those rights and agreed to speak with Lepe. Fuimaono retold the story. He said he covered M.P.’s mouth with his extremely large hand three times and his mouth and nose twice. M.P. bit him the first time. Fuimaono explained a few days earlier, he went to check on M.P. at night and M.P. dug his fingernails into his ear, and Fuimaono bit his arm. Near the end of the interview Fuimaono thanked Lepe for helping him realize “that what [he] was doing was wrong” and apologized for initially lying to him.
Third Interview
About two hours after the second interview, around 9:40 a.m., Lepe again spoke to Fuimaono in the police station. Lepe presented Fuimaono with a doll, which Fuimaono used to demonstrate how he wrapped M.P. in a sheet and suffocated him. Fuimaono described in detail the three times he used his hand to cover M.P.’s face. Near the end of the interview, when Lepe said he knew Fuimaono did not intend to hurt M.P. but that it appeared he may have felt that way for a brief moment, Fuimaono stated, “There are times when I do let my anger get the better of me . . . .”
Procedural History
An information charged Fuimaono with murder (Pen. Code, § 187, subd. (a); all further statutory references are to the Penal Code, unless otherwise indicated) (count 1), and assault on a child with force likely to produce great bodily injury resulting in death (§ 273ab) (count 2), on November 30, 2012, and child abuse (§ 273a, subd. (a)) (count 3), on November 26, 2012.

Before trial, Fuimaono filed a motion for discovery of peace officer personnel records, Lepe and officer Luis Garcia, pursuant to Pitchess, supra, 11 Cal.3d 531, which Buena Park opposed. At a hearing on the Pitchess motion, the trial court determined there was good cause for an in camera review. After the in camera review, the court granted the motion in part, ordering discovery of some of Garcia’s records, and denying the motion in part.
The prosecution filed a motion to admit Fuimaono’s statements to Franklin and Lepe. Fuimaono filed a motion to exclude his statements to Lepe. At the hearing on the suppression motion, the trial court stated it had listened to the three recorded interviews with Lepe and read the transcripts of those interviews. After the court said it had read the moving papers and counsel submitted on the papers, the court ruled Fuimaono’s statements to Lepe were admissible.
The trial court made the following factual findings: CHOC security, and not the police, placed Fuimaono in the conference room for his own safety; Lepe told Fuimaono he was not under arrest and officers would escort him out of CHOC; only two officers were present for the interview; officers did not draw their guns or handcuff Fuimaono; the interview lasted approximately two hours; and Lepe never raised his voice or became upset. Based on a totality of the circumstances, the court concluded a reasonable person would not believe he was deprived of his freedom and Fuimaono was not in custody at CHOC. With respect to voluntariness of Fuimaono’s statements, the court noted Lepe advised Fuimaono of his Miranda rights at the police station. The court noted Lepe did say he could help Fuimaono get anger management classes, but he said it only once in passing and it was not sufficient to be a motivating cause of Fuimaono’s confession. The court said that although Lepe told Fuimaono to tell the truth, he did not yell at him, threaten him, or promise him leniency. The court ruled Fuimaono’s statements were voluntary.
At trial, the jury heard the three interviews. The jury saw photographs of M.P.’s injuries, including the bite mark on his right arm Fuimaono inflicted four days earlier. Williams testified she gave M.P. a bath the morning of his death and she did not notice a mark on his arm. Murray testified M.P.’s external injuries were not
life-threatening injuries. Davenport testified the bite mark was “absolutely not”
life-threatening.
The jury convicted Fuimaono of all counts. The trial court sentenced Fuimaono to 25 years to life on count 2. The court imposed a concurrent term on count 3 and imposed and stayed a term on count 1 pursuant to section 654.
DISCUSSION
I. Motion to Suppress
A. First Interview—Miranda v. Arizona (1966) 384 U.S. 436
Fuimaono argues his statements during his first interview were admitted in violation of Miranda v. Arizona (1966) 384 U.S. 436. We disagree.
Miranda requires officers to admonish criminal suspects of certain rights, including the right to remain silent, to safeguard the Fifth Amendment’s guarantee against self-incrimination. (Miranda, supra, 384 U.S. at pp. 473-474.) The prosecution may not use statements elicited by the police during custodial interrogations absent a valid waiver of the defendant’s Miranda rights. (People v. Kopatz (2015) 61 Cal.4th 62, 79-80.) As to custody, the Supreme Court of the United States has explained that “Miranda become[s] applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’” (Berkemer v. McCarty (1984) 468 U.S. 420, 440 (Berkemer).) Whether an individual is in custody is a mixed question of law and fact. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403 (Pilster).) The appellate court defers to the trial court’s factual findings to the extent they are supported by substantial evidence, but independently evaluates whether the defendant was in custody. (Ibid.)
“Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citations.] Although no one factor is controlling, the following circumstances should be considered: ‘(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of [the] questioning.’ [Citation.]” (Pilster, supra, 138 Cal.App.4th at p. 1403, fn. omitted.) “Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (Id. at pp. 1403-1404.)
Here, the interview was at CHOC, not the police station, in a conference room where CHOC security officers, not the police, put Fuimaono for his own protection. (Pilster, supra, 138 Cal.App.4th at p. 1404 [questioning at police station more onerous].) Although the recorded interview lasted two hours, at the outset, Lepe told Fuimaono that he was not under arrest and he was free to leave. In fact, Lepe told Fuimaono that because M.P.’s family was at the hospital, officers would escort Fuimaono out through a secret way for his own safety. Contrary to Fuimaono’s claim otherwise, the fact officers offered to escort Fuimaono does not mean he was in custody. There were only two officers at the interview, and Fuimaono was not handcuffed during the interview. Although officers arrested Fuimaono at the end of the interview, that is but one factor to consider in the totality of the circumstances. Based on the totality of the circumstances, we conclude Fuimaono was not in custody.
To support his claim he was in custody, Fuimaono cites to evidence of M.P.’s grave condition to establish a reasonable person would not feel free to leave. Were we to accept Fuimaono’s contention, this would transform many routine investigations into custodial encounters. Fuimaono also asserts Lepe and Franklin were aggressive, confrontational, and accusatory during the interview. “While the nature of the police questioning is relevant to the custody question, police expressions of suspicion, with no other evidence of a restraint on the person’s freedom of movement, are not necessarily sufficient to convert voluntary presence at an interview into custody.” (People v. Moore (2011) 51 Cal.4th 386, 402.) Again, Lepe told Fuimaono that he was not under arrest, he was free to leave, they would escort him out, and he was not handcuffed during the interview.
Finally, Fuimaono relies on California v. Beheler (1983) 463 U.S. 1121 (Beheler), and Oregon v. Mathiason (1977) 429 U.S. 492, two cases where the court concluded defendants who voluntarily went to the police station for 30-minute interviews and returned home were not in custody. That the interview here was longer and officers arrested Fuimaono at the end of the interview does not by analogy demand the conclusion Fuimaono was in custody. As the Beheler court stated, “the circumstances of each case must . . . influence a determination of whether a suspect is ‘in custody’ for purposes of receiving Miranda protection.” (Beheler, supra, 463 U.S. at p. 1125.) Thus, Fuimaono was not in custody for the entirety of the first interview.
B. Second & Third Interviews—Missouri v. Siebert (2004) 542 U.S. 600
Fuimaono asserts his statements during his second and third interviews should have been suppressed because they were obtained via a deliberate two-step interrogation in violation of Missouri v. Siebert (2004) 542 U.S. 600 (Seibert). Fuimaono admits he did not raise this issue below but states we can decide it on the record before us. We agree we can dispose of this claim on the record before us.
If police officers intentionally and deliberately fail to provide Miranda warnings and conduct a custodial interrogation of a suspect until a confession is produced, then immediately provide Miranda warnings and conduct a second interrogation designed to produce the same confession, the second confession is inadmissible. (Seibert, supra, 542 U.S. at p. 617 (plur. opn. of Souter, J.); id. at p. 622 (conc. opn. of Kennedy, J.).) Here, the record includes no evidence Lepe engaged in a deliberate two-step interrogation to circumvent Miranda. As explained above, the trial court properly found Fuimaono was not in custody during the first interview and thus Seibert is inapplicable. (In re Kenneth S. (2005) 133 Cal.App.4th 54, 65-66 [Miranda warnings before first confession not required because defendant’s first interview not custodial and therefore Seibert does not apply].) The court also found Lepe did not use coercive methods during any of the interviews. Further, because there was a gap of time of about three hours between the first and second interview and the interviews were at different locations, Fuimaono was able to “distinguish the two contexts and appreciate that the interrogation ha[d] taken a new turn.” (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).)
C. Third Interview—Miranda v. Arizona (1966) 384 U.S. 436
Fuimaono claims his statements during his third interview were erroneously admitted because officers did not readvise him of his Miranda rights before his third interview. Again, we disagree.
In People v. Smith (2007) 40 Cal.4th 483, 504 (Smith), the California Supreme Court stated as follows: “This court repeatedly has held that a Miranda readvisement is not necessary before a custodial interrogation is resumed, so long as a proper warning has been given, and ‘the subsequent interrogation is “reasonably contemporaneous” with the prior knowing and intelligent waiver.’ [Citations.]” The Smith court identified the following factors to determine whether a valid Miranda waiver obviates readvisement: “1) the amount of time that has passed since the initial waiver;
2) any change in the identity of the interrogator or location of the interrogation; 3) an official reminder of the prior advisement; 4) the suspect’s sophistication or past experience with law enforcement; and 5) further indicia that defendant subjectively understands and waives his rights. [Citation.]” (Smith, supra, 40 Cal.4th at p. 504.)
Fuimaono’s claims appears to be premised entirely on his argument his first Miranda advisement before the second interview was invalid pursuant to Siebert, supra, 542 U.S. 600. As we explain above, this claim is meritless. Additionally, only two hours passed between the second and third interviews and the interrogator was the same, Lepe. (Smith, supra, 40 Cal.4th at pp. 504-505 [12-hour interval].) Because we conclude there were no constitutional errors, we need not address whether Fuimaono suffered any prejudice. Thus, the trial court properly admitted Fuimaono’s statements during his three interviews.
D. Ineffective Assistance of Counsel
Fuimaono contends he received ineffective assistance of counsel (IAC) because his defense counsel did not raise the following three claims: (1) he “was in custody during the entire interrogation at the hospital by . . . Lepe”; (2) his second and third interviews were obtained via a deliberate two-step interrogation in violation of Seibert; and (3) his statements during his third interview were erroneously admitted because officers did not readvise him of his Miranda rights. Because we have addressed and rejected all these claims, we need not address his IAC claim.



II. Sufficiency of the Evidence
Fuimaono asserts insufficient evidence supports count 3 because there was no substantial evidence the probability of serious injury was great when he bit M.P. on the arm four days before his death. Not so.
“‘When a defendant challenges the sufficiency of the evidence, “‘[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’”’ [Citation.] ‘The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.’ [Citation.] ‘Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.’ [Citation.] ‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.]” (People v. Casares (2016) 62 Cal.4th 808, 823-824.)
Felony child abuse, section 273a, subdivision (a), provides: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering . . . shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.” (Italics added.)
The definition of “likely,” for purposes of section 273a, subdivision (a), has been the subject of some disagreement among courts. In People v. Sargent (1999)
19 Cal.4th 1206, 1216 (Sargent), the California Supreme Court said the felony provision was “‘intended to protect a child from an abusive situation in which the probability of serious injury [was] great.’ [Citation.]” In People v. Wilson (2006) 138 Cal.App.4th 1197, 1204, the Fourth District, Division One, concluded this definition in Sargent was dictum and “the definition of ‘likely’ in the context of section 273a is not that the death or serious injury is probable or more likely than not.” The Wilson court concluded, “‘[L]ikely’ as used in section 273a means a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death.” (Id. at p. 1204.) “‘Great bodily harm refers to significant or substantial injury and does not refer to trivial or insignificant injury.’ [Citation.]” (People v. Cortes (1999) 71 Cal.App.4th 62, 80.)
Here, there was sufficient evidence from which the jury could reasonably conclude there was a substantial danger Fuimaono inflicted a significant injury when he bit M.P. on the right bicep. The jury was permitted to consider M.P.’s “tender age and fragile physical development” in relation to the “force used by [the] defendant.” (Sargent, supra, 19 Cal.4th at p. 1221.) M.P. was 18 months old, weighed 25 pounds, and could not walk. Fuimaono was 6’4” tall and weighed nearly 300 pounds. Although expert testimony indicated M.P. suffered from no visible injuries that were life threatening, it was certainly reasonable for the jury to conclude that when a 300 pound man bites an infant there was a well-founded risk the infant would suffer a significant injury. Indeed, with enough force, it is not unreasonable to conclude the bite could result in muscle damage or a fractured bone. Whether the force used by the defendant was likely to produce great bodily injury is a question for the trier of fact to decide. (Sargent, supra, 19 Cal.4th at p. 1221.) Here, the jury concluded it was, and there was substantial evidence to uphold that finding.
III. Pitchess v. Superior Court
Fuimaono asks this court to review the documents submitted in response to Pitchess, supra, 11 Cal.3d 531. Specifically, he asks this court to conduct an independent review to determine the following: whether the custodian of records was placed under oath; whether the custodian produced all relevant documents; whether the custodian stated which documents she did not produce and why; and whether the court made a record of what documents it examined. The Attorney General does not object. We have reviewed the transcript of the in camera hearing and concluded the procedural requirements required by People v. Mooc (2001) 26 Cal.4th 1216, were complied with.
DISPOSITION
The judgment is affirmed.



O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.