P. v. Torres
Filed
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, Plaintiff and Respondent, v. MACARIO TORRES, Defendant and Appellant. | 2d Crim. No. B189687 (Super. ( |
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
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
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
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.)
" 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
______________________________
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."