P. v. Neri

Filed 6/16/06 P. v. Neri CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from the Superior Court of San Bernardino County. Douglas M. Elwell, Judge. Affirmed.

ORIGINAL PROCEEDING; petition for writ of habeas corpus. Douglas M. Elwell, Judge. Petition denied.

David P. Lampkin, 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, Senior Assistant Attorney General, Raquel M. Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction

A jury convicted defendant Veronica Alejandro Neri of second degree murder (Pen. Code, § 187, subd. (a)) and assault on a child causing death (Pen. Code, § 273ab)). In her appeal, defendant claims the trial court erred in denying her motion to suppress her statements made during a videotaped police interview which were obtained in violation of Miranda.^[1] Defendant also claims the prosecutor should have been prevented from using her declaration in support of her motion, which remained inadvertently unsigned until the prosecutor sought to use it as impeachment evidence. In her appeal and in her petition for writ of habeas corpus, defendant argues that her trial attorney provided ineffective assistance of counsel in submitting the unsigned declaration and failing to object to its subsequent use. In her writ petition, defendant argues that her trial attorney also provided ineffective assistance in stipulating to the admission of her boyfriend's police interview.

We conclude that the court properly denied defendant's motion because defendant's statements were not obtained in violation of Miranda. We also reject defendant's other claims because she cannot demonstrate that her trial attorney provided constitutionally defective performance or that his performance prevented her from receiving a fair trial. We affirm the judgment and we deny defendant's petition for writ of habeas corpus.2. Facts

In August of 2001, defendant had two children, Dana, who was 16 months old, and Maxwell, who was two years four months old. Defendant lived in a one-bedroom apartment with her boyfriend, Noe Lugo, her two children, Noe's parents and sister, Lucy. Defendant had met Noe at night school, where both were taking classes to learn English. Apparently, at the time, defendant was still married to Samuel Santiago.

On the morning of August 13, 2001, Noe, who worked in the evenings, came home and noticed that Dana appeared to be sad. As usual, Noe went to sleep during the day. Later in the morning, while defendant was taking a shower, Noe woke and heard Dana moaning. He noticed that Dana was having difficulty breathing. Noe knocked on the bathroom door and told defendant that her daughter was sick. Dana became unconscious and defendant attempted to give her mouth-to-mouth resuscitation. After telling Noe to call the ambulance, defendant instead decided to drive Dana to the hospital.

En route to the hospital, defendant noticed an ambulance and flagged it down. The ambulance was occupied, but the emergency personnel called for another ambulance.

Shortly after arriving at the hospital, the doctors announced that Dana was dead. The autopsy report indicated that Dana's injuries were not accidental. Dr. Steven Trenkle, who performed the autopsy, noted acute fractures to Dana's right fourth, fifth, sixth, and seventh ribs. He also noted that Dana had healing fractures of certain front and posterior ribs. Dana's pancreas was completely torn, which likely occurred three to five days before her death. Her recent injuries and death were caused by tears to the liver, diaphragm, the mesentery of the bowel, right adrenal gland, and pancreas. Dr. Trenkle noticed that Dana had bled the majority of her blood volume into her abdominal cavity. The injuries were caused by a considerable amount of force, which could not have been inflicted accidentally or by a small child. The amount of force required would have been equivalent to a hard punch or a kick.

Although there were other adults in the home, defendant was the children's primary caregiver. She was the only one who disciplined the children. She sometimes slapped her children on the mouth and hands and spanked their buttocks. During her police interview, defendant explained that Dana was very clingy that morning and insisted on staying by her side. Defendant pushed her away. When Dana refused to go to sleep, defendant grabbed her by the hand, lifted her, and tossed her on the pillow. She landed on a plastic cup, which was on the bed. Defendant denied hitting or kicking Dana in the stomach or having any intent to kill her daughter.

Defendant claimed that Noe was responsible for Dana's injuries.

3. Defendant's Police Interview

Defendant claims the trial court erred in denying her motion to suppress her taped police interview. Defendant claims that her statements were obtained in violation of Miranda.

A. Factual and Procedural Background

At the hospital on the following morning, Detective Mary Ortiz talked with defendant, Noe, and Lucy and asked them to accompany her to the police station to answer some additional questions. They were cooperative and voluntarily accompanied Ortiz. Because their car had been impounded, another officer transported them to the station.

In the afternoon, Detective Ortiz interviewed defendant about the events leading up to Dana's death. As stated above, defendant admitted that she was the only one in the household who disciplined her children. After being told that Dana's injuries were not accidental, defendant explained, â€