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P. v. Torres

P. v. Torres
02:20:2007

P


P. v. Torres


Filed 1/16/07  P. v. Torres CA2/6


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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


SECOND APPELLATE DISTRICT


DIVISION SIX







THE PEOPLE,


    Plaintiff and Respondent,


v.


MACARIO TORRES,


    Defendant and Appellant.



2d Crim. No. B189687


(Super. Ct. No. VA077913)


(Los Angeles County)


            Macario Torres appeals from the judgment entered following conviction by a jury of second degree murder (Pen. Code, §§  187, subd. (a), 189),[1] assault on a child resulting in death (§  273ab), and felony child abuse.  (§  273a, subd. (a).)  As to the felony child abuse conviction, the jury found true an allegation that appellant had personally inflicted great bodily injury on a child under the age of five years.  (§  12022.7, subd. (d).)  The trial court sentenced appellant to prison for 25 years to life. 


            Appellant contends that the trial court erroneously (1) failed to suppress statements made to the police in violation of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), (2) failed to instruct the jury on the lesser included offense of assault by means of force likely to produce great bodily injury (§  245, subd. (a)(1)), and (3) instructed the jury on consciousness of guilt.  We affirm.


Facts


            Maria C. (Maria) was the mother of Rosemary C. (Rosemary), born in April 2001, and is the mother of Georgina C. (Georgina), born in April 1999.  In April 2003 Maria married appellant.  


            On August 5, 2003, appellant dropped off Maria at her place of work.  Rosemary and Georgina were with appellant in the car.  Later, Maria received a telephone call from appellant.  He said that Georgina had pushed Rosemary while Rosemary was on the stairs of a slide.  Rosemary fell, " hit her head and didn't wake up."  


            Appellant drove Rosemary and Georgina back to Maria's place of work.  Maria went to the vehicle and saw that Rosemary was unconscious.  Rosemary's back was " really purple."   Her back had not been purple that morning.  


            Appellant drove Rosemary, Georgina, and Maria to the children's pediatrician.  The pediatrician called an ambulance to take Rosemary to the hospital.  At the hospital, a CT scan of Rosemary's brain was obtained.  The CT scan showed " a very large intracranial hemorrhage."  Rosemary also had severe abdominal injuries.  Her " liver was damaged throughout 75 percent of the liver."  


Dr. Mark Spicer performed surgery on Georgina's head.  Her skull was fractured.  During the surgery, Rosemary's " brain began to swell to a point where the volume of the skull was no longer sufficient to contain it."  Dr. Spicer removed part of Rosemary's brain " in the hope of creating sufficient volume in her head to accommodate survivable brain . . . ."   But Dr. Spicer concluded that the injury to her brain was " nonsurvivable."  Dr. Spicer testified:  " I would have to remove so much brain that the excision of the brain would have resulted in her death."  Thus, the surgery was concluded. 


            Dr. Spicer opined that the extreme amount of swelling of Rosemary's brain could have been caused only by " a severe amount of force that is highly unlikely to be produced in a single event."  It would not have been caused by " falling four feet down some metal stairs."  


            Rosemary died on August 8, 2003.  Dr. David Whiteman performed an autopsy.  Whiteman opined that Rosemary's death was caused by " multiple traumatic injuries."   The head injuries by themselves were fatal.  Independently of the head injuries, the abdominal injuries were also fatal.  Dr. Whiteman opined that a fall from the stairs of a slide could not have caused Rosemary's injuries. 


            Appellant was interrogated by the police.  He stated that he had hit Rosemary " with an open hand approximately three times across the back."   Later in the interrogation, appellant said that he had hit Rosemary " hard" eight times in the back with a shoe.  After the eighth blow, Rosemary " fell face forward."  


            At the end of the interrogation, appellant was arrested.  After he was placed under arrest, appellant stated, " It wasn't me."   Appellant " said that it was his wife that had hit the child and that he was covering up for her and that she was pregnant."  


Miranda


            Appellant contends that, in violation of Miranda, the trial court erroneously failed to suppress statements he had made to the police.  Prior to trial, the court conducted an Evidence Code section 402 hearing on appellant's motion to suppress.  The trial court denied the motion.  


            During the trial, the court permitted appellant to reopen his motion for the purpose of offering in evidence a tape recording and transcript of police interviews conducted at the South Gate Police Department.  The tape and transcript had not been presented to the court at the pretrial hearing.  After listening to the tape and reviewing the transcript, the trial court again denied the motion to suppress. 


Evidence Presented at the Suppression Hearings


            On August 5, 2003, Sergeant Cosme Lozano of the Huntington Park Police Department went to a clinic in Huntington Park.  Paramedics at the clinic told him that they were taking Rosemary to the hospital.  The paramedics said that the father's account of how Rosemary's injuries had occurred " was not consistent with [her] severe


condition . . . ."  The paramedics indicated that appellant was the father.[2] 


Lozano spoke to appellant.  He did not " physically detain him in any way[.]"   Appellant wanted to go with Rosemary and Maria to the hospital, but Lozano told him " that it was important for him to remain . . . so that [Lozano could] further investigate the situation and establish what exactly had happened."  Appellant was cooperative and agreed to remain with Lozano. 


            Appellant told Lozano that he was at the park with Rosemary and Georgina, who were playing on a jungle gym.  Georgina accidentally pushed Rosemary off the top landing of the jungle gym, and Rosemary fell to a lower landing. 


            Lozano remained with appellant at the clinic until the arrival of Sergeant Lee Alirez and Officer Jose Cisneros of the Huntington Park Police Department.  They arrived at about 1:51 p.m.  Lozano briefed them on the situation and left. 


            Alirez asked appellant what had happened.  Appellant said that the children were playing on " playground equipment" at a park in Huntington Park when " the baby fell and he picked her up . . . ."  Alirez asked appellant if he would go with the police to the park and point out the playground equipment.  Appellant responded, " Yes."  " He was very cooperative.  Volunteered to go to show [the police] where the incident occurred at."  


Appellant had a car parked at the clinic.  Alirez asked appellant to follow the police in his car to the park, but appellant said that he did not have a driver's license.  Accordingly, Officer Cisneros drove appellant and Georgina to the park. 


Upon arriving at the park, appellant " pointed at the jungle gym where he said the incident had occurred."  Because appellant did not know his residence address, Cisneros asked him to show the police where he resided.  Appellant agreed to do so, and Cisneros drove him and Georgina to appellant's residence in South Gate. 


Cisneros then drove appellant and Georgina directly to the Huntington Park Police Department to be interviewed by a detective.  Cisneros led appellant and Georgina into an unsecured lunch room with a television and vending machines.  Detectives Conrad Chacon and Alfred Martinez arrived and led appellant alone into a small interview room.


Chacon and Martinez informed appellant that he was not under arrest or in custody and that " [h]e was free to leave at any time."   Appellant did not ask to leave.  The detectives started interviewing appellant.  The time was approximately 5:00 p.m.  


The interview lasted about 10 or 15 minutes.  A sergeant interrupted the detectives and asked them to step outside.  The sergeant said that the incident was a South Gate matter and that South Gate detectives were en route to interview appellant.  Huntington Park police officials believed that Rosemary had received her injuries at appellant's residence in South Gate, not at the park in Huntington Park.  


Chacon and Martinez returned to the interview room and explained to appellant that South Gate detectives were coming to talk to him.  Chacon testified, " I believe [appellant] said that was fine because he agreed to stay there."  Chacon and Martinez did not say why South Gate was taking over the matter.  They left appellant alone in the room for 10 or 15 minutes until the South Gate detectives arrived at approximately 6:00 p.m.  No one was guarding appellant, and the door was open.  Appellant was not handcuffed.


South Gate Detectives Anthony Alonzo and Ron Inman spoke to appellant in the interview room at the Huntington Park Police Department.  They asked him " if he would be willing to go with" them to the South Gate Police Department so they " could talk to him there."  Appellant " said that he would."  Appellant signed a document entitled, " South Gate Police Department Witness Transportation Consent Form."   The form stated that appellant was free to leave at any time and that he consented to being transported.  Although the form was in English, Alonzo translated the form from English to Spanish for appellant.  


Detectives Alonzo and Inman transported appellant to the South Gate Police Department.  They led him to a lunch room area with a refrigerator, television, and bathroom.  They brought in food and shared it with him.  


After eating, Detectives Alonzo and Inman interviewed appellant.  The door of the interview room was open.  At the beginning of the interview, appellant " said that he understood" that his presence was voluntary.  Appellant was advised that he was not under arrest and that he was free to leave.  Appellant told the detectives that Rosemary had fallen from the upper level of a slide to a lower landing. 


The interview continued for about 40 minutes until approximately 10:00 p.m., when Detective Todd Anderson arrived.  Anderson was a homicide investigator with the Los Angeles County Sheriff's Department.  Since it appeared that Rosemary was going to die, the case had been assigned to him. 


Anderson took charge of the interview, which lasted for about another 40 minutes.  Alonzo and Inman were present during this second part of the interview, and Alonzo joined with Anderson in questioning appellant. 


Anderson started from the beginning " as if any other prior interview hadn't occurred."   Anderson testified: " I wanted to start fresh and again explain to [appellant] he wasn't under arrest, he's free to leave, and I just wanted to find out for my own self . . . what had happened."  Anderson explained to appellant that " basically we just needed to find out exactly what happened to Rosemary."  


The detectives told appellant that Rosemary's injuries " were not consistent with her falling off the [slide]."  Alonzo stated: " The girl didn't get hurt on . . . the slide.  Something else happened today.  It's important that you tell us the truth because it will be better for her."  The detectives also told appellant that there were cameras in the park.  The detectives said that, when they " review those cameras," they would be able to verify appellant's version of what had occurred.  


Appellant then changed his story and said that he had hit Rosemary with an open hand three times on her back.  The detectives told appellant that Rosemary's injuries were not consistent with her being struck with an open hand.  Appellant changed his story again and said that he had hit Rosemary on the back eight times with a shoe.  At this point, appellant was formally arrested and the interview was terminated. 


Trial Court's Ruling


            At the pretrial Evidence Code section 402 hearing, the trial court stated that it was " very comfortable with the officers' conduct" until the interview conducted by Detective Anderson.  Up to that point, the court stated, " the evidence is pretty clear that they were really trying to figure out what is going on."   Nevertheless, the trial court concluded that appellant was not subjected to custodial interrogation at any time.  The court found that appellant had " voluntarily agreed to an interview," and that the police had informed him that " he was free to leave."   " Throughout the entire interrogation, he was told . . . quite a few times and it is uncontradicted he could go home.  He didn't have to be there."  The court also found that there was no evidence that the police (1) had " dominated and controlled the course of the interrogation" ; (2) had " manifested the belief that [appellant] was culpable and they had evidence to prove it" ; (3) had been " aggressive, confrontational and/or accusatory" ; (4) had used " coercion" or " intimidation" ; (5) had been " in any way abusive" ; or (6) had " forced [appellant] to go anywhere with law enforcement."  


At the reopened hearing in the middle of the trial, the court stated that it had listened to the tape recording of the interviews at the South Gate Police Department.[3]  It found that the officers were not " in any way, shape or form . . . aggressive," and that " their tone was not threatening."   The court declared: " I don't see anything additional to change my ruling.  So the ruling will stand."  


Discussion


            Appellant contends that the questioning at the South Gate Police Department constituted custodial interrogation.  Therefore, appellant argues, the statements that he made during the South Gate interrogation should have been suppressed because he had not been advised of his Miranda rights.


A suspect must be given Miranda warnings only when subjected to custodial interrogation.  (People v. Mickey (1991) 54 Cal.3d 612, 648.)  " ' " The adjective [custodial] encompasses any situation in which 'a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' " '  [Citation.] . . . The test for whether an individual is in custody is 'objective . . . " [was] there a


'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." '  [Citations.]"   (People v. Ochoa (1998) 19 Cal.4th 353, 401.)  This test involves two inquiries: " 'first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. . . .  The first inquiry . . . is distinctly factual.' "   (Id., at pp. 401-402.)  We accept the trial court's factual findings supported by substantial evidence. (People v. Mayfield (1997) 14 Cal.4th 668, 733.)  " 'The second inquiry, however, calls for application of the controlling legal standard to the historical facts.' "   (People v. Ochoa, supra, 19 Cal.4th at p. 402.) 


Since the facts here are undisputed, " we must decide on independent review[] whether a reasonable person in [appellant's] position would have felt free to end the questioning and leave."   (People v. Ochoa, supra, 19 Cal.4th at p. 402.)  However, " 'we " 'give great weight to the considered conclusions of a lower court that has previously reviewed the same evidence."   [Citations.]' "   (People v. Whitson (1998) 17 Cal.4th 229, 248.)


" '[T]he initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.'  [Citation.]"   (People v. Carpenter (1997) 15 Cal.4th 312, 384.)  " [A]n officer's views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer's views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave."   (Stansbury v. California (1994) 511 U.S. 318, 325, 114 S.Ct. 1526, 1530.) 


            We concur in the trial court's determination that appellant was not subjected to custodial interrogation.  Appellant was repeatedly told that he was not under arrest and was free to leave.  He consented to being transported to the South Gate Police Department.  He never indicated that he desired to discontinue the questioning.  There was no evidence that the police had engaged in improper or coercive behavior.


The detectives at South Gate communicated their suspicions to appellant when they said that his version of events was inconsistent with Rosemary's injuries and that they would " review those cameras" in the park.  But the disclosure of their suspicions did not suggest that appellant was no longer free to leave.  " Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest."   (Stansbury v. California, supra, 511 U.S. at p. 325, 114 S.Ct. at p. 1530.) 


Appellant's interrogation was not rendered custodial because of its duration or location at the police station.  The detectives made clear to appellant that his participation in the interrogation was voluntary and that he could terminate it at any time.  The United States Supreme court has " explicitly recognized that Miranda warnings are not required 'simply because the questioning takes place in the station house . . . .'  [Citation.]"   (California v. Beheler (1983) 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520.)


            Thus, the trial court did not err in denying appellant's motion to suppress his statements to the police.  Under the totality of the circumstances, a reasonable person in appellant's situation would " have felt free to end the questioning and leave." (People v. Ochoa, supra, 19 Cal.4th at p. 402.)


Lesser Included Offense


            Appellant was convicted of assault on a child resulting in death.  (§  273ab.)  He contends that the trial court committed prejudicial error in refusing to instruct on the lesser included offense of assault by means of force likely to produce great bodily injury. (§  245, subd. (a)(1).)  Appellant argues that the jury could have concluded that while he " assaulted Rosemary with the required force, the assault did not cause her death." (AOB 34)  Appellant maintains that the jury could have concluded that the fatal blows had been delivered by Maria or Rosemary's grandmother. 


            " A trial court must instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense.  [Citation.]


' " Substantial evidence" in this context is " 'evidence from which a jury composed of reasonable [persons] could . . . conclude [ ]' " that the lesser offense, but not the greater, was committed.  [Citations.]'  [Citation.]"   (People v. Manriquez (2005) 37 Cal.4th 547, 584.)  " 'In deciding whether evidence is " substantial" in this context, a court determines only its bare legal sufficiency, not its weight.  [Citations.]'  [Citation.] 'An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense.'  [Citation.]"   (People v. Hayes (2006) 142 Cal.App.4th 175, 181.)


The record contains no evidence from which a reasonable jury could conclude that the lesser offense (assault by means of force likely to produce great bodily injury), but not the greater (assault on a child resulting in death), had been committed.  The only evidence that someone else had committed the fatal assault was appellant's statement after his arrest that " it was his wife that had hit the child and that he was covering up for her and that she was pregnant."   This evidence, if accepted by the jury, would have absolved appellant of both the greater and the lesser offenses.


            Even if the trial court had erred in not instructing on the lesser included offense, the error was harmless.  " ' " [I]n some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.  In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury."  [Citations.]'  [Citations.]"   (People v. Elliot (2005) 37 Cal.4th 453, 475.)


            Here the factual question posed by the omitted instruction was the cause of Rosemary's death.  This question was necessarily resolved adversely to appellant under other, properly given instructions, when the jury found him guilty of the second degree murder of Rosemary.


Jury Instruction on Consciousness of Guilt


            Appellant contends that the trial court erred in instructing the jury on consciousness of guilt pursuant to CALJIC No. 2.03.[4]  Appellant argues that the instruction does not apply where, as here, the defendant has " confessed to the crimes he was charged with."  


            Appellant never confessed.  " A confession must encompass all elements of the crime.  [Citations.]"   (People v. Thompson (1990) 50 Cal.3d 134, 162, fn. 10.)


Appellant did not admit all of the elements of the charged offenses.  Moreover, after he was arrested, appellant recanted his admissions to the police.  The trial court, therefore, did not err in instructing on consciousness of guilt.


            We reject appellant's contention that the consciousness of guilt instruction is constitutionally flawed because it invites " the jurors to consider certain types of evidence as indicating guilt of the charged offenses."  Appellant cites no authority in support of this contention. 


Disposition


            The judgment is affirmed.


 


           NOT TO BE PUBLISHED.


                                                                                                YEGAN, J.


We concur:


                        GILBERT, P.J.


                        COFFEE, J.




John A. Torribio, Judge


Superior Court County of Los Angeles


______________________________


                        Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. 


                        Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Roy C. Preminger, Deputy Attorney General, for Plaintiff and Respondent.


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


[2] Appellant, however, was not Rosemary's biological father.  He was her stepfather. 


[3] The tape did not record the entire interviews at South Gate.  The tape recorder was accidentally turned off for about 15 or 20 minutes during the interview conducted by Anderson.  During this unrecorded interval, appellant changed his story and said that he had hit Rosemary.


[4] The instruction was as follows:  " If you find that before this trial [the] defendant made a willfully false or deliberately misleading statement concerning the crime[s] for which [he] is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt.  However, that conduct is not sufficient by itself to prove guilt, and its weight and its significance, if any, are for you to decide."






Description Defendant appeals from the judgment entered following conviction by a jury of second degree murder (Pen. Code, SS 187, subd. (a), 189), assault on a child resulting in death (S 273ab), and felony child abuse. (S 273a, subd. (a).) As to the felony child abuse conviction, the jury found true an allegation that appellant had personally inflicted great bodily injury on a child under the age of five years. (S 12022.7, subd. (d).) The trial court sentenced appellant to prison for 25 years to life.
Appellant contends that the trial court erroneously (1) failed to suppress statements made to the police in violation of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), (2) failed to instruct the jury on the lesser included offense of assault by means of force likely to produce great bodily injury (S 245, subd. (a)(1)), and (3) instructed the jury on consciousness of guilt. Court affirm.
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