P. v. Davila

Filed 4/6/06 P. v. Davila CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. Affirmed.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Salvador Miranda Davila challenges his conviction for second degree murder and assault on a child resulting in death, stemming from the death of his two-year-old daughter. He contends the court violated his confrontation rights by admitting his girlfriend's out-of-court statements against him. He further contends the court erred by admitting evidence of his prior assaults on his daughter. Also, he asserts the prosecution committed misconduct by informing the jury he was in custody. Finally, he contends the court wrongly instructed the jury.

We reject defendant's contentions. His girlfriend's statements did not violate his confrontation rights, because he had a prior opportunity to cross-examine her. The court did not abuse its discretion in concluding the probative value of the prior assault evidence outweighed any chance of undue prejudice. Defendant waived any error from the references to his custodial status by failing to object; in any event, the comments were harmless. Finally, the court properly instructed the jury. We affirm.

FACTS

The Investigation

Responding to a 911 call, paramedics arrived at the Fullerton motel where defendant lived with his girlfriend and their four young children. They found the couple's two-and-one-half-year-old daughter, Miranda, laying on the ground. Defendant was improperly performing CPR on her. Miranda was not breathing and had no pulse. The paramedics took her to the closest emergency room, where the next day she died.

Defendant agreed to go to the Fullerton Police Department to speak with a detective about Miranda. The interview was recorded. Defendant told the detective about the rough day he had been having. He had a bad toothache, his car broke down repeatedly on the way to a roofing job that morning, his crew walked off the job site because he was late, the homeowner was angry with him, his car broke down again on the way home, and he had tried in vain to gather enough money to pay the rent. Defendant refused to discuss what had happened to Miranda in the motel room.

The detective also spoke with defendant's girlfriend in a taped interview. For two hours, she denied knowing what had happened. Then she claimed she had pushed her son, Sammy, into Miranda, who fell and hit her head. A police sergeant entered the room and instructed the detective to place the girlfriend under arrest. After hearing and waiving her rights, the girlfriend stated, â€