P. v. Torres

Filed 7/2/07 P. v. Torres CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

Defendant Brenda Torres was charged with one count of murder (Pen. Code,  187),^[1]one count of assault on a child resulting in death ( 273ab), one count of child endangerment ( 273a, subd. (a)) and one count of inflicting corporal injury on a child. ( 273d, subd. (a).) It was alleged as to the last two counts that she personally inflicted great bodily injury on a child within the meaning of section 12022.7, subdivision (d). After the close of the prosecutions case-in-chief at her jury trial, the trial court granted the prosecutions motion to reduce the charges in counts one and two to a charge of voluntary manslaughter ( 192, subd. (a)) and a charge of inflicting corporal injury on a child. ( 273d, subd. (a).) Both sides waived jury trial and the trial continued as a court trial. The trial court convicted defendant of all four counts and found the great bodily injury allegations to be true. The court sentenced defendant to an aggregate unstayed prison term of 14 years and four months.

On appeal, defendant claims (1) the prosecutor committed prejudicial misconduct by contacting one of her expert witnesses pretrial resulting in a violation of her right to adequately confront and cross-examine the witnesses against her, (2) such misconduct also resulted in a critically weakened defense impermissibly putting her into a position where she was forced to waive her right to jury trial, (3) insufficient evidence supports the convictions, and (4) evidence of defendants interrogation by police was erroneously admitted. As we reject these contentions, we shall affirm the judgment.

FACTUAL BACKGROUND

Around 10:30 p.m. on January 12, 2005, paramedics answered a call to the home of defendant and her husband Victor Romero. No one appeared to speak English to explain the nature of the emergency, but when the paramedics went inside, they found an infant lying on the kitchen table. The infant was not moving or breathing, had no pulse, and his eyes were closed. The paramedics started CPR and, on the way to the hospital, were able to start the babys heart. The infant (defendants two and a half month old son Carlos) was examined at the hospital by emergency room physician Mark Krueger, who attempted to resuscitate him. It appeared to Krueger to be a case of a shaken baby based on his initial impression, the babys clinical presentation and a CT scan that showed bleeding within the babys head consistent with that kind of trauma. The CT scan showed a recent injury had occurred within the previous six hours and at least one older injury occurred perhaps between two and nine days earlier. Krueger failed to notice at the time that there were also three skull fractures. Stockton police were notified of the situation and officers responded to the hospital. The baby was transferred to the Oakland Childrens Hospital after approximately three and a half hours.

Stockton Police Detectives Takeda and MacDonald talked to hospital staff and then contacted defendant and her family in the hospital lobby. Takeda suggested they go to the detectives office to talk more privately about what had happened. When defendant said they did not have transportation, Takeda offered them a ride. Defendant, Romero (her husband) and Kharla Gill (her sister) rode with the detectives to their office in the early morning hours of January 13, 2005. As Romero spoke only Spanish, a Spanish-speaking detective was called to come in and speak with him. As defendant spoke English, Takeda and MacDonald began to interview her in a separate room. They had no problem understanding each other.

The detectives obtained general information from defendant and then took a break to get updated information from the hospital and to talk to other detectives. Defendant rejoined Romero and Gill in the office lobby for the break. Fifty minutes later, Takeda and MacDonald resumed their questioning of defendant in the interview room. Near the end of the second period of questioning, defendant told the detectives she shook Carlos. It was at this point the detectives first focused on defendant as the primary suspect. They took another break of an hour and 20 minutes. They started the third session of questioning by advising defendant of her Miranda^[2]rights. Takeda asked defendant if she understood her rights and defendant said she did.

The detectives proceeded to question defendant. Defendant said she had shaken Carlos two days earlier, but denied shaking him the day he was taken to the hospital. Defendant continued to insist she did not hurt Carlos. After a period of further questioning, MacDonald told defendant he did not believe her story. MacDonald said he was going to talk to Romero and get his side of the story. MacDonald told defendant the information they had from the hospital was that Carlos was in very serious condition and he might die. The detective said the doctor was saying Carlos was shaken the previous night and if he was shaken it was either you or your husband. Defendant then said, it was me, it was me and started to cry.

After she regained her composure, defendant told the detectives she had shaken Carlos on two occasions. In the incident two days earlier, she shook Carlos and screamed at him when he was crying and would not be quiet. Her husband was present, took Carlos and calmed him down. Then on the previous evening around 9:00 p.m., she was trying to give Carlos his prescribed breathing treatment. Romero was not present. Carlos was struggling against the breathing mask and defendants two-year-old daughter Danielle was, at the same time, jumping around on the bed. Both children were crying. Defendant was stressed, tired, and became frustrated. She grabbed Carlos by the arm, lifted him out of the crib, and shook him harder than the day before. Carlos became quiet and she laid him back in the crib.

Later defendant and Romero went into the bedroom to check on Carlos. Carlos was lying on his back with his eyes open. His complexion was very pale. Both defendant and her husband panicked. They called 911.

The detectives asked defendant if anyone else could have injured Carlos, asking both generally and specifically naming all the people involved in Carloss care. Defendant said no to their questions. Defendant specifically said Romero was a good dad, more patient than defendant was. The detectives asked if anyone could have accidentally sat on Carlos and defendant said, No. They asked if any object had fallen on Carlos and defendant said, No. The detectives asked if Danielle had ever shaken Carlos. Defendant said Danielle was too small to even pick him up. Danielle may have wrestled with Carlos in play, but there was always someone around to make sure things did not get out of hand. There was an incident where Danielle almost sat on Carlos, but defendant was able to prevent it. Defendant said Danielle was kind of jealous of Carlos and might have hit him, but defendant was working with Danielle to make her understand that Carlos was her little brother. Defendant admitted she was Carloss primary caregiver. She stayed home and took care of him full-time.

Defendant asked to be allowed to see Romero. She wanted to be the first to tell him what she had done. When defendant met with Romero after her interview, she told him that she had shaken Carlos, did not mean to hurt him, and asked for Romeros forgiveness.

Dr. James Crawford, a pediatrician and the medical director of the Center For Child Protection at the Childrens Hospital in Oakland, examined and treated Carlos when he was brought to the hospital in critical condition on the morning of January 13, 2005. Due to his incredibly fragile condition, Crawford was only able to conduct a relatively limited physical exam of Carlos, but he determined from X-rays, the CT scan, and his examination that Carlos had a number of different injuries. There were a number of areas of hemorrhaging in his brain, reflecting injuries of at least two different ages. There was retinol hemorrhaging in both eyes. Shaking very, very violently could have caused some of these bleeds. In addition, there were at least three sites of skull fractures, indicating more than just shaking happened to injure the baby. There were also five to 10 rib fractures as well as a healing leg fracture, consistent with an injury occurring in November 2004.

Carlos was declared brain dead on January 14, 2005. Crawford opined Carlos died from blunt force trauma to multiple parts of his body, but ultimately the head trauma was what killed him; blunt trauma with a shaking component. This case was among the worst cases Crawford has ever seen. A two year old throwing a toy at the baby would not account for Carloss injuries or come close to explaining why he died. Moreover, Carloss patient history did not reflect any report by the family of the sibling trying to injure him.

Dr. George Bolduc, a forensic pathologist, did the autopsy of Carloss body on January 17, 2005. Bolduc found several light bruises on Carloss scalp and knee. He had several scab lesions on his scrotum consistent with fingernail imprints. He had significant hemorrhages of the soft tissues of the brain and multiple skull fractures caused by blunt force trauma. There were multiple older, healed fractures of the ribs. Bolduc determined the cause of death was the blunt force injuries to the head. Examination of Carloss brain and eyes by the Stanford University neuropathology lab resulted in findings consistent with Bolducs conclusion of blunt force injuries.

Dr. Douglas McGirr, a radiologist, reviewed the X-rays and CT scan taken of Carlos. The CT scan showed collections of blood around the brain from both a recent and an older injury. The pattern of the bleed indicated a diffused type of injury such as would be seen in a shaken baby. There were also skull fractures, but the bleeding was not limited to the fracture sites which indicated that there was also shaking. X-rays taken on November 11, 2004 showed soft-tissue swelling on Carloss right leg. X-rays taken three or four days later showed a possible fracture of the leg. Any such injury in a baby that is not yet ambulatory is suspect for child abuse. X-rays taken on January 13, 2005, showed healing rib fractures that were probably two months old, corresponding to the time of the leg injury.

Dr. Maggie Park, a pediatrician with San Joaquin General Hospital, testified she saw Carlos on November 15, 2004. Carlos had been admitted a few days earlier to the hospital for swelling of his leg, starting mid-thigh down to his foot. Defendant gave no history of trauma that could have caused the injury and specifically denied any episode of trauma. Although Dr. Park was suspicious of trauma, the radiological tests were negative. The diagnosis on discharge was infected arthritis.

Defendant testified on her own behalf. Defendant said she never did anything to harm Carlos, that she never grabbed, squeezed or shook him in anger, that she never shook him so hard it injured him and that she never shook him on the day he was taken to the hospital. She only lifted him up and asked him why he was crying. Defendant testified her two-year-old daughter was jealous after Carlos was born and hit him several times. She threw toys and baby bottles at him, jumped on him and pulled his leg. On the afternoon of the day Carlos was taken to the hospital, defendant heard Carlos crying. When she went into the bedroom, she found a toy in his crib and Danielle standing on the rail of the crib holding a bottle. Defendant picked Carlos up and he looked fine, so she held him until he calmed down.

Members of defendants family testified defendant was a good mom and that they never saw her hit or abuse her children. Carlos was a very fussy baby and Danielle was a very jealous, aggressive sibling.

Dr. Patrick Barnes, a pediatric neuroradiologist, testified for the defense. He reviewed the records, reports, X-rays and CT scan of Carlos. He could not make a diagnosis that Carlos was killed as a result of shaking or that the baby had suffered any non-accidental injury. He opined no doctor could diagnose a shaken baby just from a CT scan. According to Barnes, there is a huge controversy in the medical field over whether injuries can ever occur from shaking alone. From what he reviewed, Barnes could not make a final diagnosis of blunt force injuries with a shaking component. Barnes noted the blood tests taken by San Joaquin General Hospital showed Carlos was anemic. Anemia makes a baby more prone to developing hemorrhages. It was now established even minor impact injuries can produce the type of findings shown on the CT scan for Carlos. He testified that an aggressive two year old could possibly cause this kind of bleeding by hitting a baby with a filled 12 to 16 ounce baby bottle.

Dr. Steven Gabaeff, an emergency room physician who also practices forensic medicine, testified for the defense after reviewing all the medicial records of Carlos from the time of his birth until he died, as well as the autopsy report and the police investigative reports. He believed the rib and leg injuries were caused by trauma in November 2004, that the injuries could have been caused by Danielle jumping on the baby, and that if a proper diagnosis had been made at the time, the family could have been put on notice to monitor Danielle. Gabaeff agreed the medical cause of Carloss death was his head injuries, not shaken baby syndrome. He believed the head injuries could have been caused by a two year old bludgeoning the baby with a heavy toy or baby bottle.

DISCUSSION

I.

There Was No Prosecutorial Misconduct

A. Background

Defendant substituted counsel on March 22, 2005, the day scheduled for her preliminary hearing, and the preliminary hearing was continued so her new defense counsel could prepare. The preliminary hearing was continued twice more to allow defense counsel to obtain necessary records. After defendant was held to answer, arraigned, and entered her pleas of not guilty, a trial date was set for August 1, 2005.

At the scheduled pretrial conference in July, the trial date was continued to September 19, 2005 for the parties to get more information. The trial court told both defense counsel and the prosecutor to get the additional information needed by the next scheduled pretrial conference scheduled for August 29.

On August 25, defendant filed a motion to continue the trial on the grounds that discovery recently produced by the People needs to be reviewed by the defendants experts, that a psychiatric investigation is currently underway and is not expected to be completed until September 30, 2005, and that MRI films, X-[r]ays, and laboratory samples have been subpoenaed for review by defendants experts but have not yet been received. The prosecutor opposed defendants motion at the hearing on August 29, claiming the X-rays had been delivered to defendants expert on August 18. The trial court continued the hearing on defendants motion to continue, noting there was additional discovery at issue besides the X-rays, but it was not convinced a continuance of the trial date was yet shown to be necessary.

On September 8, 2005, the prosecutor filed a declaration supporting his opposition to continuance of the trial date. The declaration stated the X-rays had been delivered to Dr. Coulter (the defense expert) on August 23, that the prosecutions expert informed the prosecutor it would only take about an hour to examine the X-rays, that the prosecutor had left a phone message with the defense expert on August 29 advising him of the need to have his report before the September 19, 2005 trial date, and that on September 1 the defense expert had left a return message stating he did receive the X-rays, did not know the trial date was September 19, and it would not take very long at all to look at the X-rays.

At the further hearing on defendants motion to continue the trial date, held on September 14, 2005, defense counsel told the court Dr. Coulters report was not yet ready, he did not know when it would be, and further time was needed for a psychological profile of defendants family. The prosecutor contested the defense need for a continuance, but agreed to trail the case for a week to allow defendant time for preparation with her experts. The trial was reset for September 26.

On September 23, defendant filed another motion to continue the trial because Dr. Coulter had still not been able to prepare his report and there were record production problems with the hospital. The court postponed the matter until the next day to allow defendant to try and clear up the problem with getting the hospital records.

On September 27, defendant filed a supplemental declaration of her counsel regarding the record production problems. Defense counsel also orally informed the court that because of opposing counsels improper communication with our expert witness, [it] appears we have a problem now with our expert witness. The trial court ordered the hospitals production of the X-rays, any MRI films and laboratory samples, but denied the motion for continuance. The case was assigned out for trial.

The next day defendant made a further motion for continuance complaining about both the record problems and the prosecutors misconduct in contacting the defense expert, Dr. Coulter, in August without the permission of the defense. Defendant claimed, contact with our expert is impermissible. It is wrong. Now we have problems with the witness in terms of our ability to work with him. For that reason, we withdrew him as an expert yesterday. The prosecutor denied ever speaking with Dr. Coulter and repeated they only exchanged brief messages as previously noted. Defense counsel agreed the contact between Dr. Coulter and the prosecutor was done by way of telephone messages, but told the court Dr. Coulter could no longer act as an expert because he is under threat of litigation from our client for breach of client confidence, there is a conflict. We cant use him as an expert in our case. The court found the prosecutor had not done anything to make it impossible for defendant to continue to work with her expert. The trial court denied the motion for continuance without prejudice and the case proceeded to trial. Defendants petitions for extraordinary writ relief filed with this court and the California Supreme Court were summarily denied.

After the evidentiary portion of the trial was finished, the continuance matter was raised again. The trial court asked defendant if she needed any further time to put on any other witnesses or for her witnesses (Barnes and Gabaeff) to look at transcripts. The court was willing to accommodate defendant since the case was proceeding at that point as a court trial. Defendant felt the issue regarding the time needed to prepare prior to trial was adequately addressed by the motions to continue. Defense counsel declined further time to present additional testimony now, stating, Given the state of the case at this time, I think our witnesses have testified sufficiently. Later, after sentencing, defense counsel clarified, were not waiving any objections we have in regard to the way that we were brought to trial, that we didnt have an expert opinion to use to cross-examine medical witnesses which we think might have been relevant to the cross-examination of Dr. Crawford in regard to his concerns whether or not the two-year-old could have caused the injury, and also in regard to whether we waived the jury trial.

B. Analysis

Defendant claims her convictions should be reversed because of prosecutorial misconduct. Specifically, defendant contends the prosecutor contacted Dr. Coulter to obtain confidential information regarding the defendants readiness for trial and then used this information in an effort to force the case to trial before the defendant had established her defense. Defendant complains she was without any assistance from an expert witness to prepare for her cross-examination of the prosecutions experts. She suggests the egregious conduct of the prosecutor deprived her of a defense at trial. Defendant claims the prosecution deprived her of due process and the ability to confront and cross-examine witnesses against her, causing a structural defect in the trial that cannot be cured. We disagree with defendants characterization and analysis of the situation.

Defendant cites cases involving prosecutorial misconduct in interfering with the defendants right to counsel. For example, defendant finds instructive Morrow v. Superior Court (1994) 30 Cal.App.4th 1252 [prejudicial misconduct when the prosecutor sent her investigator over to the area where defendant was meeting with his attorney to eavesdrop on their confidential communications] and Boulas v. Superior Court (1986) 188 Cal.App.3d 422 [improper tampering with the defendants right to counsel when the prosecution persuaded a represented defendant to discharge his counsel and to get a different counsel the prosecution could work with before the prosecution would plea bargain]. Defendant also cites United States v. Morrison (1981) 449 U.S. 361 [66 L.Ed.2d 564] [agents of Drug Enforcement Agency met with represented defendant without the knowledge or permission of her counsel, disparaged her counsel and threatened her with more jail time if she failed to cooperate], People v. Jordan (1990) 217 Cal.App.3d 640 [state prison administration alleged to have eavesdropped on confidential attorney/client communications], and People v. Tribble (1987) 191 Cal.App.3d 1108 [defendant alleged police improperly used him as a participant in a narcotics investigation and attempted sting against his own defense counsel]. These cases are inapplicable to this case.

Here there is no evidence in the record the prosecutor improperly contacted defendant, obtained knowledge of any confidential communications between defendant and her counsel, or in any way interfered with defendants choice or right to counsel. The only conduct complained of here is the prosecutors message left for Dr. Coulter, a defense medical expert, to the effect that the prosecution needed his report by September 19, the date set for trial at that point. Contrary to defendants characterization of it, such message did not seek confidential information regarding the defendants readiness for trial, but only sought to alert the doctor to the time requirements for preparation of his report. The doctors message back to the prosecution did not disclose any attorney/client confidences. It did not disclose the nature of the defense, suggest the defense did not need the other hospital records or materials defendant was seeking, or promise defendant would be ready for trial by any particular date. The message only acknowledged the date to which the trial had been continued, the doctors receipt of the X-rays (which were only a portion of the medical evidence defendant had subpoenaed), and that it would not take long to look at the X-rays. Defendant has shown no interference with her right to counsel.

Even if this case is analyzed for an interference with a defense witness, defendants claim fails.

To prevail on a claim of interference with the defendants Sixth Amendment and due process rights to present witnesses, a defendant must establish three elements. (People v. Lucas (1995) 12 Cal.4th 415, 457.) First, he must demonstrate prosecutorial misconduct, i.e., conduct that was entirely unnecessary to the proper performance of the prosecutors duties and was of such a nature as to transform a defense witness willing to testify into one unwilling to testify. [Citation.] Second, he must establish the prosecutors misconduct was a substantial cause in depriving the defendant of the witnesss testimony. [Citation.] . . . The misconduct in question may be deemed a substantial cause when, for example, it carries significant coercive force [citation] and is soon followed by the witnesss refusal to testify. [Citation.] Finally, the defendant must show the testimony he was unable to present was material to his defense. [Citation.] (Ibid.)

Defendant has not met either part of the first element. She has not shown the prosecutors conduct was entirely unnecessary to the proper performance of the prosecutors duties. (People v. Lucas, supra, 12 Cal.4th at p. 457.) Although the prosecutor could have relied on defense counsel to inform defendants witnesses of relevant time deadlines, we view the prosecutors conduct in notifying Dr. Coulter of the continued trial date and the necessity for his report by that date as a professional courtesy designed to alert the defense expert to the relevant court timelines. Rather than being conduct outside the proper performance of his duties, the message left by the prosecutor fell within the reasonable scope of his duties. Moreover, and critically, the prosecutors conduct was not of such a nature as to transform a defense witness willing to testify into one unwilling to testify. [Citation.] (Ibid.) The prosecutors telephone message only advised the doctor of the need to have his report before the September 19, 2005 trial date. It did not actually request any response from Dr. Coulter. And nothing about the message was likely to dissuade Dr. Coulter from testifying or to coerce him to change or withdraw his testimony. After receipt of the message, Dr. Coulter still could have prepared his report for the defense after he reviewed both the X-rays, which he had, and the remainder of the medical evidence when it was obtained. His report could have been provided by the defense to the prosecution as part of the normal discovery process.^[3]There was no prosecutorial misconduct.

As there was no misconduct, defendant cannot establish the second element of improper interference with a defense witness, i.e., that the prosecutors misconduct was a substantial cause in depriving the defendant of the witnesss testimony. (People v. Lucas, supra, 12 Cal.4th at p. 457.) Instead, it appears defendant withdrew Dr. Coulter as her expert witness based on her unwarranted view that the prosecutors contact was improper and that Dr. Coulters communication back to the prosecutor disclosed confidential information. We have already rejected such view. Any difficulty defendant then had in preparing to cross-examine Dr. Crawford or other prosecution expert witnesses resulted from her choice to discontinue working with Dr. Coulter. It was not the fault of the prosecution.

Finally, we note defendant was able to obtain two expert witnesses (Doctors Barnes and Gabaeff) for trial, apparently in place of Dr. Coulter. She was satisfied with their testimony and declined the courts offer of any further time to have them review further materials in order to present additional testimony or to find additional witnesses.

We conclude neither defendants Sixth Amendment right to confront and cross-examine witnesses and present a defense nor her right to due process was violated by the prosecutions conduct in this case.

II.

Defendants Waiver Of Her Right To Jury Trial Was Knowing, Intelligent And Voluntary

A criminal defendant has a fundamental right to a trial by jury under both the federal and state Constitutions. (Duncan v. Louisiana(1968) 391 U.S. 145, 154-155 [20 L.Ed.2d 491, 499]; Cal. Const., art. I, 16; People v. Ernst (1994) 8 Cal.4th 441, 445.) Although defendant may waive this right (People v. Collins (2001) 26 Cal.4th 297, 305 (Collins); People v. Smith (2003) 110 Cal.App.4th 492, 500), a defendants waiver of the right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it, as well as voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. [Citations.] (Collins, supra, at p. 305.)

Defendant claims the prosecutors misconduct in contacting her expert witness, as discussed above, prejudiced her trial preparation and resulted in a critically weakened defense. This impermissibly put her into a position where she was forced into a Hobsons choice with regard to the prosecutions offer to reduce the charges in counts one and two in exchange for her waiver of her right to jury trial. That is, defendant contends her waiver of her jury trial rights was neither voluntary nor was it made with a sufficient awareness of the relevant circumstances and likely consequences of her waiver. The record does not support defendants claims.

The first mention in the record of a possible mid-trial waiver by defendant of her right to jury trial came on the afternoon of the fourth day of jury trial when the prosecutor gave the trial court a heads up that the parties were discussing a possibility that the murder charge in count one would be amended to manslaughter and the count two charge of assault on a child resulting in death would be amended to child endangerment in exchange for defendants waiver of further jury trial and agreement to continue by means of a court trial. Later that day, the court indicated the decision regarding waiver of jury trial was up to the parties and directed them to consider the matter over the evening recess. The court noted any waiver would have to be on the record thoroughly . . . to make sure [defendant] really understands what shes doing.

The next morning defense counsel informed the court that defendant wanted to waive her right to jury trial. The prosecution agreed to waive the Peoples right to jury trial and set out the parties agreement with regard to amendment of the information. The trial court reviewed the terms of their agreement and defense counsel confirmed defendant was prepared to waive jury trial under the stated terms. The court repeated the nature of the amendments and the charges that would be left unchanged. The court asked defense counsel if he had talked to defendant about waiving jury trial and counsel stated he had done so at length. The court then explained to defendant the nature of the court trial that would take place if she waived her right to jury trial. The court asked defendant if she understood and gave up her right to jury trial. Defendant said she did. The trial court obtained defendants express stipulation to the court considering all of the evidence already introduced so that the trial would not have to start over. The court elaborated that defendant retained her rights to present evidence, cross-examine witnesses, and have the prosecution prove each offense beyond a reasonable doubt, but this would be done in front of the judge instead of the jury. Defendant said she understood and agreed. When asked, defendant said she was fine with the court deciding the case even though the court had heard a number of matters that the jury was never going to hear. The court asked defendant if she had enough time to talk to her counsel about giving up her right to jury trial and defendant affirmatively stated she had had sufficient time. Defense counsel concurred in defendants waiver. The court asked defendant if she had any questions about her rights and defendant said no. Defendant again expressly waived her right to jury trial. The trial court found the waiver to be intelligent, free, and voluntary.

The record amply shows defendants waiver of her right to jury trial was made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. (Collins, supra, 26 Cal.4th at p. 305.) The trial court could not have been more careful in explaining the nature of defendants waiver, how it would affect her rights, and how the trial would then proceed. Defendant had discussed her waiver with her counsel at length, did not want any further time to discuss it with her counsel, and unhesitantly expressed both understanding and waiver of her rights.

Defendant contends, however, that at the time of her waiver she was not yet aware of certain facts material to her defense because she did not have a qualified expert witness to advise her. The fact that there might have been additional information, including possible evidentiary information, of which defendant was not then aware, does not make her waiver unknowing. The question is whether defendant was fully aware of the nature of her right to jury trial and the effect of her waiver of that right (Collins, supra, 26 Cal.4th at p. 305), not whether she possessed all possible information relevant to the complicated calculus of deciding whether a waiver would be a wise decision.

The record also supports the conclusion defendants waiver was voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. (Collins, supra, 26 Cal.4th at p. 305.) First, we have already rejected the claim the prosecutors prior conduct with Dr. Coulter was misconduct. Therefore, there was no prosecution misconduct forcing or coercing defendants waiver. Second, nothing in the record suggests defendant was making her decision based on her inability to adequately cross-examine the prosecution doctors. Defendant never complained or objected that the prosecutions conduct had put her in a position of having to accept the prosecutions offer of a reduction of charges in exchange for her waiver of her right to jury trial. Rather, the record amply reflects the prosecution evidence introduced up to the time of defendants waiver was very strong and the defendants decision to accept the proposal of the prosecution was based on that strength rather than any prior difficulties with cross-examination or any weakened defense occasioned by any late substitution of defense expert witnesses. The record simply shows defendant deliberately and freely chose to waive her right to jury trial in exchange for the considerable benefit of facing reduced charges.

III.

Substantial Evidence Supports The Convictions

Defendant contends her convictions are not supported by the evidence. Defendant cites to the comments of the trial court at sentencing that Carlos died from blunt force trauma^[4]and then makes the following argument. Since the alleged admission by [defendant] during her interrogation was that she allegedly shook her baby, an admission that [the trial judge] decided was not supported by any evidence, there is no substantial evidence that [defendant] ever hit or acted violently toward any of her children or other family members. Since the Peoples own pathologist determined, and [the trial judge] found, that the infant had died due to a blunt force trauma to the head, there was no substantial evidence to support the conviction of [defendant]. Although circumstantial evidence indicated that three persons were in the best position to have caused the harm suffered by the infant (i.e., the immediate family members: [defendant], her husband, and the toddler), the mere probability (which is approximately one-third) that [defendant] might have been the cause of her infants death is not enough to satisfy a conviction, even if every reasonable inference is indulged in favor of the [trial judges] decision. In fact, there is no substantial evidence that would demonstrate that any of the infants injuries were not accidental in nature. (Fns., record references, and underlining omitted.) Defendant continues by arguing it was not reasonable for the court to find her guilty since one interpretation of the facts (that another family member caused the injuries) is as likely as [defendant causing the injuries]. Therefore, according to defendant, she had to be acquitted and this court must now reverse. We reject defendants arguments as misrepresenting the evidence and the trial courts findings, as well as misapplying the appropriate standard of review for a substantial evidence question on appeal. We start with the applicable standard of review.

On appeal we determine the substantiality of the evidence from the whole record, view the evidence in the light most favorable to the prosecution, consider both reasonable inferences and circumstantial evidence, and affirm the judgment if there is evidence of ponderable legal significance . . . reasonable in nature, credible, and of solid value, from which a reasonable trier of fact could find defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576; see People v. Holt (1997) 15 Cal.4th 619, 667-669; see People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We do not ask whether we believe the evidence established guilt beyond a reasonable doubt. (People v. Hatch (2000) 22 Cal.4th 260, 272.)

With respect to circumstantial evidence, we must accept logical inferences that the [trier of fact] might have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [trier of fact]. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.) And, [a]lthough it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the [trier of fact], not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Perez (1992) 2 Cal.4th 1117, 1124, quoting People v. Bean (1988) 46 Cal.3d 919, 932-933; accord, People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

Applying these standards, substantial evidence supports defendants convictions.

Dr. Krueger testified that his initial impression of Carlos when he was admitted to the hospital on January 13, 2005, Carloss clinical presentation and a CT scan of his head were all consistent with the case being one of a shaken baby. Dr. Crawford testified Carlos died from blunt force trauma with a shaking component. The pathologist Dr. Bolduc testified Carlos died from blunt force trauma. Although Dr. Bolduc did not testify to a shaking component as did Dr. Crawford, nothing in Dr. Bolducs testimony refutes Dr. Crawfords opinion that Carlos was also shaken. Dr. Bolducs testimony simply establishes that any injury from shaking did not ultimately cause Carloss death. Dr. McGirr testified Carlos had injuries consistent with both being shaken and blunt force trauma in the older fractures of his ribs and leg. Consistent with this testimony, the trial court noted Carlos died from blunt force trauma. Contrary to defendants argument, the trial court did not conclude Carlos was not also shaken. The trial court did not conclude defendants admission of shaking Carlos was not supported by the evidence. In fact, her admission was clearly supported by the testimony of Dr. Krueger, Dr. Crawford, and Dr. McGirr.

Given defendants admission of shaking Carlos on two occasions and the evidence that such shaking was violent enough to result in brain hemorrhaging, it was a very reasonable inference defendant was also responsible for the blunt force trauma when Carloss ribs and leg were broken earlier and when his skull was fractured shortly before death. Such inference is amply supported by the circumstantial evidence. Defendant stayed home from work when Carlos was born and was Carloss primary caretaker. He was in her care when he was fatally injured on January 12, 2005. Defendant admitted getting tired and frustrated when caring for her children. Defendant denied in her interview with detectives that anyone else, including Danielle, was responsible for Carloss injuries. She denied anyone accidentally sat on Carlos, that any object had fallen on Carlos, and that Danielle had ever shaken or sat on Carlos. Defendant told the detectives Danielle might have hit Carlos, but Dr. Crawford testified a two year old throwing a toy at the baby would not account for Carloss injuries or come close to explaining why he died.

Although defendant presented contrary evidence regarding the cause and nature of Carloss injuries, the trial court was not required to accept such testimony. In light of Dr. Crawfords testimony that this was one of the worst cases he had ever seen, the trial court was justified in concluding Carloss multiple injuries during his short life were not accidental. Although there was no direct evidence of defendant causing those injuries, the circumstantial evidence reasonably justified the trial courts findings of guilt.

IV.

The Trial Court Did Not Err In Admitting Defendants Interrogation Statements

Defendant contends the trial court erred in admitting her interview with detectives into evidence as it contained an involuntary confession.^[5] She claims her confession was coerced because the detective told her the hospital was saying Carlos had been shaken and it was either you or your husband, implying Romero might be accused of injuring Carlos. Defendant complains the police were relying on faulty information from the hospital and simply worked at finding evidence to support their idea that Carlos had been shaken to death. Defendant complains about comments one of the detectives made to her about his ability to refer the case to Child Protective Services.^[6] Defendant complains she was psychologically coerced because she was subjected to prolonged questioning after receiving no sleep and the detectives repetitively told her she had caused Carloss imminent death.

Both the state and federal Constitutions bar the use of involuntary confessions (or admissions) against a criminal defendant. (People v. Smith (2007) 40 Cal.4th 483, 501 (Smith).) A confession is involuntary if it is not the product of a rational intellect and a free will [citation], such that the defendants will was overborne at the time he confessed. [Citation.] (Ibid.) A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it does not itself compel a finding that a resulting confession is involuntary. [Citation.] The statement and the inducement must be causally linked. [Citation.] (People v. Maury, supra, 30 Cal.4th 342, 404-405.) To determine voluntariness, we apply a totality of the circumstances test. (Smith, supra, at p. 501; People v. Boyette (2002) 29 Cal.4th 381, 411.) Among the factors to be considered are the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity as well as the defendants maturity [citation]; education [citation]; physical condition [citation]; and mental health. [Citation.] (People v. Boyette, supra, at p. 411, quoting People v. Massie (1998) 19 Cal.4th 550, 576.)

An appellate court reviews the trial courts factual findings regarding the circumstances surrounding the defendants statements for substantial evidence, but independently reviews the trial courts finding as to voluntariness. (People v. Boyette, supra, 29 Cal.4th at p. 411; People v. Williams (1997) 16 Cal.4th 635, 659-660.)

In ruling on defendants pretrial motion in limine to suppress her interview statements based both on an alleged Miranda violation and on involuntariness, the trial court concluded defendants interview statements were admissible. The trial court found the initial questioning, prior to the detectives reading defendant her Miranda rights, was not custodial interrogation. Defendant and other family members had voluntarily agreed to accompany the detectives to the police station to talk to the officers. There were no outward indicia of custody and the police were interested at that point simply in obtaining general information about what had happened. Prior to the advisement, suspicion had not yet focused on defendant. The trial court found the actual interview time was not excessive as it amounted to less than two hours and defendant had been provided ample breaks, freedom of movement and access to her family. Having viewed the videotape of defendants interview, the court concluded defendants English was fine, although apparently it was her second language. The court found defendants language skills were good enough for the interview to be conducted in English. The trial court also found the conduct of the officers was not bold, aggressive or confrontational in any way shape or form. The tone of the interview was calm. The trial court described the statement by one of the detectives that he did not believe defendant as not being made in an accusatory tone. The trial court rejected as incredible defendants testimony at the in limine hearing that she was motivated to admit shaking Carlos because she thought if she did so, she could go back and see him.

We have reviewed the testimony of Takeda and defendant at the hearing on defendants motion in limine, as well as both the videotape and transcript of defendants interrogation. We agree with the trial court that defendants statements were voluntary and admissible. The officers were, as the trial court put it, not bold, aggressive or confrontational. Takeda specifically told defendant the officers wanted to make sure that you dont feel like we are forcing you to speak. Not forcing you to say things, and I want you to understand that though. I dont want to put words into your mouth. They have to come from you. Takeda advised defendant of her rights and defendant chose to answer the officers questions. The officers did not threaten defendant, make promises of leniency, or exert improper coercive influence.

MacDonalds statement that it was either you or your husband was made in the context of the information from the hospital at that time indicating Carlos had suffered injury from being shaken within the past few hours and the information from defendant that she and her husband were the only adults in the house that evening. It merely presented the then known facts to defendant for her possible explanation. It was not, as defendant argues, a threat to prosecute Romero unless defendant agreed to the detectives versions of events. (Cf. Rogers v. Richmond (1961) 365 U.S. 534, 545, [5 L.Ed.2d 760, 769]; People v. Lee (2002) 95 Cal.App.4th 772, relied on by defendant.)

In our view, the detectives were not simply working at finding evidence to support their idea that Carlos had been shaken to death. Rather, it appears they were working to understand how the information defendant was providing fit the information they were receiving from the hospital about Carlos having been shaken. Their persistence in questioning based on their current information did not amount to exerting improper influence or coercion. Nor does the fact that the information from the hospital was latter determined to be incomplete transform the officers questioning regarding the shaking of Carlos into coercion. Officers can even deliberately use false information and deceptive practices in interrogation without necessarily invalidating a defendants incriminating statements. (Smith, supra, 40 Cal.4th at pp. 505-506, and cases cited therein.)

We also reject defendants claim regarding the officers comments concerning his ability to make referrals to Child Protective Services. The transcript and tape reflect defendant was very concerned with the possibility of her children being taken from her. She asked the detectives about the possibility and, in response, was told it was not the job of the police to take children away from parents, that the police wanted to make sure children were kept safe and that the police could, if they thought the parents needed help, make appropriate referrals. We disagree with defendant that anything in such comments implied the detectives were threatening defendant with referring the case to Child Protective Services if defendant did not cooperate.

Finally, we reject defendants claim that she was psychologically coerced because she was subjected to prolonged questioning after receiving no sleep and the detectives repetitively told her she had caused Carloss imminent death. It is apparently true that defendant was tired because she had been up the entire night after Carlos was taken to the hospital. However, the detectives did not question defendant for the entire time she was at their office. They interviewed her for only a portion of the six hours she was at the office. Two substantial breaks, one lasting almost an hour and the other lasting almost an hour and a half, were taken. During the first break defendant was allowed to be with Romero and her sister in the lobby. During the second break, Romero was in a different interview room speaking with a Spanish-speaking detective, but defendant was not confined in her interview room. Defendant did not request additional breaks and never asked the questioning be deferred until she had some rest. (See People v. Hill (1992) 3 Cal.4th 959, 981, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) During their questioning, the detectives relayed to defendant some of the information they received from the hospital about Carloss condition and persistently asked her how Carlos could have received the injuries the hospital was reporting. Again, we do not view their persistence as coercion. The detectives were clearly concerned over the serious situation, but their conduct was not overbearing or abusive to defendant.

We conclude under the totality of the circumstances defendants statements were voluntary.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

RAYE , J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

^[1]Hereafter, undesignated statutory references are to the Penal Code.

^[2]Miranda v. Arizona(1966) 384 U.S. 436 [16 L.Ed.2d 694].

^[3]The record does not support defendants claim that Dr. Coulter refused to communicate with defense counsel because of the exchange of telephone messages with the prosecutor. The portion of the record to which we are cited for such claim only establishes defendant was threatening to sue Dr. Coulter because she viewed the telephone messages as a breach of client confidence. In light of such threat, Dr. Coulter may indeed have been reluctant to continue advising defendant, but there is no indication Dr. Coulter viewed the contact by the prosecution or his response as disqualifying him from continuing to act as a defense expert and that he was refusing to speak with defense counsel on that basis.

^[4]After sentencing defendant, the trial court made a number of comments about how it viewed the evidence, including that [n]o matter what you make of whether the first doctor said it was shaken baby syndrome or didnt, the evidence was that the baby died from blunt force trauma. The trial court stated it was unbelievable that Danielle climbed up the crib and imposed the trauma the baby sustained. The baby was also previously abused when he sustained broken ribs and the fractured leg bone. The court believed defendant knew she had hurt the baby when she took him to the hospital at that time.

^[5]Actually defendants statements did not amount to a confession, which is a statement acknowledging guilt. (CALJIC No. 2.70.) Rather her answers contained admissions, which are statements tending to prove guilt when considered with the rest of the evidence. (CALJIC No. 2.71.)

^[6]Defendant cites us to a portion of her interview where, in response to defendants question as to whether her children would be taken away from her, one of the detectives said it was not his job to take children away from their parents, it was his job to keep the family together, to make sure theyre safe, and if the parents need help, to make appropriate referrals.