P. v. Harris

Filed 8/30/07 P. v. Harris CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Gary E. Daigh, Judge. Affirmed.

Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Bianca Harris appeals from a judgment entered after a jury convicted her of second degree murder (Pen. Code,  187, subd. (a); count 1)^[1]; assault on a child causing death ( 273ab; count 2); and child abuse ( 273a, subd. (a); count 3). The jury found true that appellant committed the offense under circumstances likely to produce great bodily injury or death. ( 12022.95.)

CONTENTIONS

Appellant contends that: (1) she was denied her right to confront witnesses by the admission of statements made by her four-year-old son Christian Hines (Christian) to school employees; and (2) the trial court improperly allowed the People to cross-examine a defense expert.

FACTS AND PROCEDURAL BACKGROUND

In November 1999, appellant, then 15 years old, gave birth to Christian while living with her mother, Dimitri Bruton (Bruton). Seven or eight months later, appellant abandoned Christian and left her mothers house. Ms. Bruton cared for Christian and enrolled him in a private daycare school under a subsidized tuition plan, with her other four children. He was about a year old. During this time, Christian had a good appetite and regularly attended school. Appellant returned to Ms. Brutons house in April 2002, and became the primary caregiver for Christian. Christian was removed from the subsidized tuition plan, and appellant began taking him to and picking him up from school.

According to Christians teacher, Laura Santos (Santos), when Christian was first enrolled at the school, he behaved like a normal child. Ms. Santos kept a log of behavioral issues and injuries for each child. Beginning in September 2002, she and other staff noticed behavioral changes in Christian and marks and injuries on his body. Christians body frame became smaller and his attendance went from perfect to sporadic, even though the principal of the school, Lestean Johnson (Johnson), offered free tuition to Christian. From a happy, smiling, lovable child, Christian became much less happy. Christian started throwing chairs, telling kids to leave him alone, and flipping things over.

On September 25, 2002, Ms. Santos observed that Christian had an injured, swollen lip, and she reported it to the head teacher. The next day, Ms. Santos noticed that Christian was aggressive, disobedient, and refused to follow directions. Subsequent entries show that Christian engaged in unusual behavior: he refused to follow simple directions, got very upset, cried, and hit other children. On November 12, 2002, Christian had both fresh and old deep scratches all over his body, including his legs and arms. When Ms. Santos asked Christian about the injuries he said, my mommy did it. Ms. Santos brought Christian to Ms. Johnsons office, where he repeated that his mommy did it. Ms. Santos and Ms. Johnson knew that Christian was referring to appellant, because Christian explained that it was my mommy Bianca. Ms. Johnson took Polaroid photographs of Christians injuries. He was examined by the school nurse, who did not advise them to contact a physician.

On December 19, 2002, Christian complained that his leg hurt and told Ms. Johnson and Ms. Santos my mommy hurt me. On January 22, 2003, Ms. Santos noticed new scratches on both of Christians arms. Christian again said, my mommy hurt me. In the following months, Christian was constantly fighting, crying, jumping on the furniture, and refusing to follow directions.

Sometime between September 2003 and December 2003, appellant and Christian moved out of Ms. Brutons house to live with appellants new boyfriend, Jerome Madison (Jerome). Jeromes mother, Terry Madison (Madison), met Christian three or four times when appellant brought him over to her apartment. Once, Ms. Madison asked Christian about the scratch marks on his neck and he told her that his mommy had grabbed him with her fingernails by his neck.

On December 2, 2003, school staff noticed that Christian had scratches on his chest, neck, arm, stomach, back, bottom, and legs. When asked by the teacher what had happened, Christian said his mommy did it. On February 23, 2004, appellant had scratches on his body, face and neck. Again, he told school staff that, Mommy did it. Ms. Johnson did not report the incident to the Department of Children and Family Services because she did not believe the injuries rose to the level necessary to warn reporting. Appellant returned to Ms. Brutons house for a short time, but then left again with Christian in March 2004, to live with Jerome in his car.

Between January and March 2004, Christian visited the home of Jeromes aunt, Eleanor Washington (Washington), on several occasions. Ms. Washington noticed that Christian watched television lying on the floor, balled up in a fetal position, and knotted his hands around his stomach. He was very quiet and seemed scared. Once, Ms. Washington offered ice cream to Christian while he was sitting in the car with Jerome and appellant. Appellant turned around and punched Christian in the stomach, saying that he did not need ice cream, and that she was trying to break him of things that her mother had let him do. Ms. Washington took Christian out of the car, gave him the ice cream, and told appellant that she should not hit him. On one occasion, Jerome told Ms. Washington that Christian had been throwing up brown stuff.

Appellant and Jerome visited Ms. Washingtons son, Leonard Lucas (Lucas), a few times in the months before Christian died. Lucas observed that Christian was small for his age, was unhappy, did not want to play, was so dehydrated that his lips were always cracked, and he would ask for water when appellant was not looking. Appellant told Lucas that she forbade Christian from asking for food or water because he urinated in the car. Lucas saw appellant hit Christian several times. On the last day that Lucas saw Christian alive, Christian asked him for a sandwich. After Lucas gave him the sandwich, appellant said that she would whip [Christians] butt.

On March 29, 2004, at 6:25 a.m., appellant brought Christian to the emergency room at St. Francis Hospital. Christian was in cardiopulmonary full arrest; he had no heartbeat and was not breathing. When Dr. Michael Stephen, the emergency room physician, attempted to put a tube into Christians lungs to help him breathe, the doctor could not open his clenched jaws. The staff also attempted to put an IV into Christian and to force oxygen into his lungs through a needle in the throat, since his jaws would not open. Dr. Stephen believed that Christian had rigor mortis and therefore had been dead for more than just a few minutes. Dr. Stephen also observed bruises on Christians forehead, swelling, bruising, and scratches on his head, chest and legs. Dr. Stephen believed that Christian had died prior to his arrival at the hospital based on the rigor mortis in the jaw; his fixed and dilated eyes; and his cold extremities. He suspected Christian was the victim of abuse because he was brought to the emergency already in full arrest and had numerous injuries on his body.

Los Angeles County Sheriffs Department Deputy Anthony Willis interviewed appellant at the hospital. Appellant did not appear to be upset because she was calmly sitting on a couch and having a conversation with Jerome about what they could eat, and when they could leave. When a nurse directed Deputy Willis to appellant, he was shocked that she was Christians mother. During his interview with appellant, she referred to Christian as it. She stated that she woke up and realized that it was not breathing, so she woke Jerome up to take it to the hospital. Even though she passed several police cars on the way to the hospital, she did not bother to flag them down because she figured it was dead so we just drove to the hospital. Deputy Willis believed that appellants 10-second crying jag was faked, because she stopped crying easily, and immediately began talking in a normal voice, saying she was hungry, wanted food, and wanted to leave.

Dr. David Whiteman, a Los Angeles County deputy medical examiner, performed an autopsy on Christian. Christian was dehydrated and malnourished. He had numerous bruises, abrasions and scars on his face, body, legs, and arms. He had crescent shaped marks on his arms and chests, which could have been caused by fingernails. Dr. Whiteman stated that Christians missing front tooth was not normal for a child of his age. He opined that Christian died as a result of multiple traumatic injuries. Over a long period of time, from a few weeks to months, Christian had sustained direct blunt force trauma to his abdomen, indicated by deep internal bruising of the tissues, layers of fat, and large intestine. A large amount of the mesentery, the tissue located in the middle of the abdomen that holds intestines in place, was bruised. The abdominal injuries, which could be caused by direct punches or blows, could cause a child to die. Christian also had a fractured rib that was about two weeks old, probably caused by squeezing of the rib cage. The injuries were not consistent with a fall, and would cause pain and lethargy in a child.

Appellants cousin testified that during a viewing of Christians body at the funeral home, appellants cousin noticed a large bruise on Christians head. She questioned appellant about Christians condition before he died. Appellant told her that she sometimes used a belt to hit Christian.

In a tape-recorded interview taken by police after Christians death, Ms. Bruton told a detective that she noticed bruises on Christian that were shaped like a belt, and that appellant admitted that she had whipped Christian with a belt.

DISCUSSION

I. The trial court did not abuse its discretion in admitting Christians statements to school officials identifying appellant as the person who had inflicted the injuries

Appellant urges that the trial court abused its discretion in admitting Christians statements to school officials identifying appellant as the person who had inflicted the injuries, and erred in failing to grant her motion for new trial on the same basis. She claims that the statements were testimonial, and therefore inadmissible under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) because: (1) the principal and the teachers were statutorily required to report suspected child abuse to law enforcement authorities; and (2) the principal memorialized the statements in anticipation of future litigation. Appellant concludes that she was therefore denied her constitutional right to confront and cross-examine witnesses by the admission of those hearsay statements. We disagree.

In Crawford, the United States Supreme Court held that the Sixth Amendment confrontation clause bars the admission of testimonial hearsay statements unless the witness is unavailable to testify at trial and the defendant had a prior opportunity for cross-examination of the witness. (Crawford, supra, 541 U.S. at pp. 59, 68.) The Court left for another day any effort to spell out a comprehensive definition of testimonial, but added: Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. (Id. at p. 68.)

Davis v. Washington (2006) 547 U.S. ___ [126 S.Ct. 2266] (Davis), instructs us that [s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Id. at pp. 2273-2274.) But, the court reserved the question of whether and when statements made to someone other than law enforcement personnel are testimonial. (Id. at p. 2274, fn. 2.) In the case before it, the court rejected the characterization of the victims 911 call as testimonial, even assuming the 911 operator was an agent of the police. It stated that the victims primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying. What she said was not a weaker substitute for live testimony. (Id. at p. 2276.)

In People v.Cage (2007) 40 Cal.4th 965 (Cage), our Supreme Court derived several basic principles from Crawford and Davis:First, . . . the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimonyto establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined objectively, considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial. (Cage, at p. 984.)

In Cage, a minor was examined by a doctor for a six-inch laceration on the side of his neck. During the examination, the minor told the doctor that his mother had inflicted the wound. Our Supreme Court found that informal statements to persons not affiliated with law enforcement, such as a doctor, for the nonevidentiary purpose of diagnosis and treatment, could not be considered testimonial. (Cage, supra, 40 Cal.4th at p. 987.) Moreover, the doctors status as a statutorily mandated reporter of suspected child abuse, did not render the statement testimonial or transform him into a law enforcement investigative agent. (Id. at p. 988; People v.Brenn (June 18, 2007) 2007 WL 1739710 [victims statements made in telephone call to 911 operator and conversation with police officer investigating stabbing immediately after the stabbing, not testimonial in nature under Crawford].)

It is clear that the statements made by Christian to school staff were nontestimonial. The school staff were not law enforcement officers and they did not question him in the course of a criminal investigation. The examination of, and conversation between Christian and school staff regarding his injuries, were done out of concern for Christians current safety and health. Each time the teachers noticed Christians fresh scratches or injuries, or complaints of pain, they examined him, and in doing so, came across old marks. Thus, the purpose of the conversation was to determine the immediacy of Christians injuries. Moreover, the questioning was not formal and solemn or under oath or with law enforcement officers in attendance. Nor, as discussed in more detail, post, were the statements taken primarily to establish a past fact for use in a criminal trial. Indeed, the staff did not alert law enforcement authorities to possible criminal activity.

Nevertheless, appellant claims that the statements were testimonial because the primary purpose of the questioning was to investigate a possible crime or protect the school in litigation; school staff were mandated reporters; the principal memorialized the statements to protect the school against potential liability; and any objective observer would reasonably expect Christians answer to be available for use in a later court proceeding.

We are not persuaded by appellants arguments. As noted in Cage, [t]he mere fact that doctors must report abuse they see, suspect, or know of in the course of practice does not transform them into investigative agents of law enforcement. (Cage, supra, 40 Cal.4th at p. 988.) The reporting statute for doctors requires them to report child abuse that they know of or suspect. They are not required to investigate or ascertain, for purposes of criminal prosecution, whether a patient has suffered such abuse. (Ibid.) In Cage, the appellate court concluded that the primary purpose of the doctors examination of the minor was to determine the extent and nature of the injury in order to treat him, rather than to ascertain, for purposes of criminal prosecution, whether the minor was abused. (Ibid.)

The mandated reporting requirement for teachers cited by appellant, is similar to the reporting statute for doctors: teachers are required to report child abuse or neglect that they have knowledge of or suspect ( 11166, subd. (f)). They are not required to determine whether the minor was abused for purposes of criminal prosecution. In answer to appellants argument that the school was protecting itself by preparing for potential civil litigation, and that an objective observer would reasonably expect the statements to be used in a later court proceeding, we note that Cage refers to statements given primarily for the purpose for use in a criminal trial. According to Cage, A broad interpretation of this formulation . . . could apply to virtually every out-of-court statement purporting to describe the circumstances of a crime or to identify its perpetrator, insofar as a reasonable person could conceive that the statement might later become criminal evidence . . . the proper focus is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial. Instead, we are concerned with statements, made with some formality, which, viewed objectively, are for the primary purpose of establishing or proving facts for possible use in a criminal trial. (Cage, supra, 40 Cal.4th at p. 984, fn. 14.)

Appellants citation to People v.Sisavath (2004) 118 Cal.App.4th 1396 does not assist her argument that Christians statements were testimonial in nature. There, in January 2002, the eight-year-old victim told her mother that she had been sexually abused by an acquaintance. The appellate court held that a videotaped interview that had been conducted four months after the mother was told of the abuse and reported it to the police, was testimonial. The appellate court noted that prior to the interview, the original complaint and information had been filed and a preliminary hearing had been held; a forensic interview specialist interviewed the victim at a facility specially designed and staffed for interviewing children suspected of being victims of abuse; and, the deputy district attorney who prosecuted the case was present at the interview, along with an investigator from the district attorneys office. The appellate court held that under these circumstances, there was no serious question but that the victims statement was made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. [Citation.] (Id. at p. 1402.)

Here, on the other hand, the inquiries made to Christian were not in a formal setting, or conducted by a trained forensic specialist. No law enforcement officials were in attendance, and no criminal charges had been filed against appellant. We conclude that under the circumstances, an objective witness would not believe that the statements were primarily for the purpose of proving past facts for use in a future criminal trial.

We hold that Christians statements were not testimonial and that if any portions were testimonial, their admission was harmless beyond a reasonable doubt in light of cumulative evidence by other witnesses that appellant had struck or punched Christian; that appellant had admitted striking him to other witnesses; and that Christian told other witnesses that appellant had inflicted injuries on his neck when she grabbed him with her fingernails. (Chapmanv. California (1967) 386 U.S. 18, 36.) Additionally, even absent the challenged statements, the jury could well infer that appellant caused the injuries based on the evidence that the injuries and behavior changes observed in Christian occurred only when appellant took over his care; that the injuries were caused by repeated punches; and that appellant was his primary caretaker during the time in which these injuries occurred. Therefore, any error was harmless.

Having so concluded, we need not address the Peoples argument that the doctrine of forfeiture by wrongdoing applies to forfeit appellants right to confront the victim because under the preponderance of evidence standard, there was ample evidence that the alleged wrongdoing that caused the witnesss unavailability was the same as the charged offense. (People v. Giles (2007) 40 Cal.4th 833, 850.)

We conclude that the trial court did not abuse its discretion in admitting the challenged statements or in denying appellants motion for new trial. (People v. Waidla (2000) 22 Cal.4th 690, 717; People v. Clair (1992) 2 Cal.4th 629, 668.)

II. The trial court properly allowed the People to cross-examine the defense medical expert about appellants admission that she had hit Christian with a belt

Appellant next urges that the trial court abused its discretion in allowing the Peoples cross-examination of the defense expert regarding appellants admission to the police that she had punished Christian with a belt. We disagree.

An expert witness is subject to more extensive cross-examination than a lay witness, and the People may attempt to discredit the experts opinion. (People v.Dennis (1998) 17 Cal.4th 468, 519.) The Peoples good faith questions are proper even if, by necessity, they are based on facts not in evidence. (Ibid.) A broader range of evidence may be used on cross-examination to test and diminish the weight to be given the expert opinion. (People v.Montiel (1993) 5 Cal.4th 877, 924.)

Here, the defense expert, a doctor, testified that he had reviewed the crime scene reports and investigators reports in preparation for trial. He testified that Christians death was caused by cardiopulmonary arrest, and that a mesentery injury could occur through rough play with another child; that the location of Christians broken rib in the front was more common in trauma than child abuse cases; that some of the scars could have been caused by eczema rashes; and that the appearance of the bruises could have been exacerbated by the absence of clotting factors. On cross-examination, the People asked the defense expert if the mesentery injury was consistent with being hit with a belt and whether he had reviewed appellants statements to the police in forming his opinion. Defense counsel objected to the Peoples use of appellants statement that she had hit Christian with a belt, claiming that the People had not presented any evidence of that statement in their case-in-chief. The trial court ruled that the People could cross-examine the defense expert as to whether he had considered appellants admissions in forming his opinions.

We conclude that the trial court did not abuse its discretion in allowing the challenged cross-examination. The People were entitled to cross-examine the defense expert as to whether he considered appellants admission to the police in forming his opinion regarding the cause of Christians injuries because the defense expert had testified that he reviewed the investigators reports in preparation for his testimony. Moreover, in light of the defense experts testimony that the injuries were caused by something other than child abuse, the People were allowed to discredit the defense experts opinion by asking about appellants admission. Thus, on cross-examination, the defense expert testified that he had reviewed appellants statement that she had hit Christian with a belt; that he regarded that statement in forming his opinion by attempting to identify injuries clearly caused by a belt; and that he could not easily identify such injuries. He also testified that if a child were hit with a belt, rebleeding could occur in the mesentery, which occurred in Christians case.

We conclude that the trial court did not abuse its discretion in allowing cross-examination on the issue of appellants admission to police that she had hit Christian with a belt. Even were the admission of evidence improper, it was not prejudicial because there was no reasonable probability that appellant would have received a more favorable outcome absent the alleged error. (Peoplev. Watson (1956) 46 Cal.2d 818, 836.) The People had already presented evidence in its case-in-chief through a tape-recorded interview of Ms. Bruton, that appellant had struck Christian with a belt. Others testified that appellant admitted to them that she sometimes punished Christian with a belt. And, as previously stated, there was overwhelming evidence that appellant killed Christian.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, J.

CHAVEZ

We concur:

_____________________, P. J.

BOREN

_____________________, J.

ASHMANN-GERST

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[1] All further statutory references are to the Penal Code unless otherwise indicated.