P. v. McClendon

Filed 8/2/06 P. v. McClendon CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Andre Darnell McClendon was convicted, after jury trial, on charges of child abuse and torture. (Pen. Code, §§ 273a(a), 206.) He contends his convictions should be reversed on numerous grounds, asserting: (1) the trial court abused its discretion when it denied his motion for severance of his trial from that of his codefendant and former girlfriend, D. Cuellar; (2) the trial court erred by failing to instruct the jury, sua sponte, regarding the testimony of accomplices; (3) the prosecutor's arguments were improper; (4) evidence that appellant had previously battered Cuellar was improperly admitted, and the jury instructions as to this evidence were erroneous; (5) evidence regarding appellant's insistence on his innocence and his refusal to accept a plea bargain was improper; and (6) appellant's trial counsel was ineffective. We reject these contentions and affirm.

I. FACTS AND PROCEDURAL HISTORY

This appeal arises from the serious and prolonged burning on the arm, stomach and thighs of a young girl, (the victim), who was five years old at the time of the crimes and seven at the time of trial. The victim is the daughter of Cuellar, appellant's girlfriend at the time. Defendant was charged with both child abuse and torture; Cuellar was charged with child abuse only.

A. Prosecution Evidence

On the morning of January 2, 2002, Cuellar called the Berkeley Police Department to say that she was locked inside her home and could not get out. Officer David Frederick found Cuellar and her three children locked inside the house, which had doors that locked from both inside and outside. Frederick got a house key from Cuellar's landlord, who lived nearby, and released them. Cuellar said she had been in a fight with her boyfriend, appellant, and that afterwards appellant locked them in the house and took the keys. Cuellar said that appellant had beaten her, and she was scared and wanted to leave.

Frederick could see that one of the children, the victim, had a serious burn that was blistering on her arm. The victim told him that appellant had burned her and showed him serious burns on her thighs as well. The burns were about the size of a silver dollar.

Cuellar later signed a written statement, describing how appellant had used a heated pipe to burn the victim. Appellant had ordered Cuellar to heat up the pipe on the stove and took it from Cuellar when it was hot. Cuellar showed Frederick the pipe, which was a three-foot-long piece of hollow iron pipe, about an inch in diameter. The pipe had a burn mark at one end.

The following day, Berkeley Police Officer Marianne Jamison took over the investigation. Officer Jamison located Cuellar at the East Oakland Pediatric Center, where Cuellar had taken the victim for treatment. Officer Jamison was surprised to overhear Cuellar telling Dr. Carol Glann that Cuellar's boyfriend had heated up a rod, and then somehow accidentally dropped it on the victim, causing burns on her thigh and arm. This was contrary to Cuellar's previous statements, in which she said that appellant told her to heat up the pipe, then took it away from her and used it to burn the victim. Officer Jamison told Cuellar that her new claims that the burns were accidental did not make sense and that Jamison would be taking the victim into protective custody.

Officer Jamison took the victim to a child abuse center for an interview. The victim told the interviewer that appellant had burned her with a hot â€