Opinion
G044322 Super. Ct. No. 08HF1557
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. SHAWN KELLI SEPULVEDA, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Richard W. Sanford, Jr., Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
After abandoning her newborn infant in a dumpster outside her apartment, defendant was convicted of attempted murder and felony child abuse. On appeal, she argues there was not substantial evidence to support the conviction for attempted murder, the trial court erroneously failed to admit testimony, and that she should have been granted probation. We find no error and affirm.
I
FACTS
Defendant, who has an IQ of 89 and was considered "slow," married V. in 1994, when she was approximately 24 years old. Prior to their marriage, defendant and V. had one child together and they had another child thereafter.
As of 2007, defendant worked as a nighttime shift manager at a fast-food restaurant after being promoted from cashier. Around November of that year, V. began to suspect that defendant was having an affair with someone from work, and by the following spring, he believed that she was pregnant with the other man's child. Both V. and their two children, asked defendant if she was pregnant, but she continued to deny it. During this same time period, however, she admitted to a coworker that she was pregnant with the child of another coworker.
After he began to believe that defendant was having an affair, V. told defendant he would divorce her and attempt to gain custody of the children. V. described defendant as "drinking" and "not taking care of herself at all" during this period. A coworker observed her carrying heavy items and doing other physical work that he did not believe to be safe for a pregnant woman.
On August 16, 2008, V. woke up at 8:00 or 8:30 in the morning, and when he went into the bathroom, he saw blood on the floor and in the toilet. When he walked into defendant's bedroom, he found a steak knife and more blood, but defendant was not present. Shortly thereafter, defendant came in the front door of the apartment. When V. asked about the blood, defendant said she had started her period. She asked him to go to the store to buy some pads and went to take a shower. V. followed her and continued to question her about what had happened, but she just repeated that she had started her period.
For some time, V. had been sharing one bedroom with the children while defendant stayed in the other. C. (the 11-year-old daughter), who used to share a bedroom with her mother, stated this was because her father was not comfortable with her staying with her mother due to her alcohol use.
V. returned to the living room, and C. told him there was a lot of blood in a trash can in defendant's room. C. said there was too much blood for it to be defendant's period. V. then discovered what appeared to be a placenta inside a plastic bag in the trash can in defendant's bedroom. Believing by this point that defendant had delivered a baby, he then told C. to go check the dumpster outside. V. questioned defendant again, but she kept repeating that she had started her period and nothing had happened.
At her father's instruction, C. left to check the dumpster. She went outside and heard crying, and saw a baby in the dumpster on top of two bags of trash. She ran back to the apartment, crying and shaking, and told her father. V. ran back outside with her and saw the baby, naked, with the umbilical cord still attached. He told C. to go back inside and get his cell phone and a towel. V. tried to get into the dumpster to get the baby out, but he was unable to do so.
James Dermody, who was working at the office that day, came to the dumpster with C. Dermody was able to get the baby, a girl, out of the dumpster, and he observed that the baby was covered in blood and mucus and not making any sounds, though she began to cry again shortly thereafter. By that point, V. had called 911, and the baby was taken into the leasing office until paramedics arrived.
Deputy Stanley Blaszak, Jr., of the Orange County Sheriff's Department also responded to the 911 call. Upon speaking to the defendant, he found her to be "a little dazed and confused, kind of lost." Defendant told him that she had given birth to the baby in the bathtub, cut the umbilical cord with a steak knife, and put the baby in the trash because she was scared. The placenta came out while she was in the shower, and she put it in a white plastic bag in the trash can in the bedroom. In Blaszak's estimation, the dumpster where the baby was found was approximately 200 feet from the apartment.
Jeff Brown, an investigator for the sheriff's department, conducted a recorded interview with defendant later that morning at the hospital. Defendant stated that she had the baby in the morning in the bathtub, cut the umbilical cord with a knife, and "just got scared and I took her off to the trash." She said that she did not drop the baby in the dumpster, but placed her so that she lay on one of the garbage bags. After she put the baby in the dumpster, she went to check on her car, which she had parked in front of the leasing office, to make sure it had not been towed. When asked what defendant thought would happen to the baby, she said: "I don't know, someone would find her." But she admitted that she had thought of the possibility that the baby might die.
Defendant first told Brown that she had known she was pregnant for "a couple months" and then admitted "four, five, months maybe" had passed since she had known she was pregnant. She knew there were other options for people who did not want to keep their babies, including putting them up for adoption or going to the fire department. She said, "I know I should have brought her here," referring to the hospital. Eventually, the baby girl was adopted by defendant's father, and she does not suffer from developmental delays.
On March 3, 2009, the Orange County District Attorney filed an amended information alleging attempted murder (Pen. Code, § 664, subd. (a), § 187, subd. (a), count one) and felony child abuse (Pen. Code, § 273a, subd. (a), count two).
Prior to trial, the prosecutor moved to preclude the defense's psychiatric expert, Nancy Kaser-Boyd, from reciting statements that defendant made to Kaser-Boyd during their interview. Defense counsel argued that the expert should be permitted to testify regarding defendant's history of learning disability, her need for assistance from her father and the father's statement that he needed to assist her, and that she was confused and fearful and was not thinking. Counsel stated: "The point of the expert is for her to indicate that people who have a history of learning disability, people who . . . find themselves in a situation such as this, people who have this IQ level, people who respond to the IQ testing as she did, ultimately can be people who are easily confused, easily frustrated and that state of mind leads to an inability to weigh and appreciate outcomes of behavior, consequences of behavior. [¶] And, ultimately, I would be using those facts and opinions to support my argument that there was . . . lack of intent to kill and lack of premeditation and deliberation."
The trial court ruled that the expert could testify that she had relied upon statements the defendant had made in forming her opinion, but could not repeat those statements unless they had already been admitted into evidence. The court's concern was essentially allowing defendant to testify through the expert without cross-examination.
At the conclusion of trial, the jury found defendant guilty on both counts, though it did not find that defendant acted willfully and with premeditation and deliberation with respect to count one. After denying probation, the trial court sentenced defendant to the low term of five years for count one and stayed sentence on count two.
As of the date of sentencing, September 24, 2010, defendant had 884 days of credit for time served.
II
DISCUSSION
Specific Intent
Defendant first argues that there is insufficient evidence to support her conviction on count one, attempted murder, because the prosecution failed to prove she acted with specific intent to kill the baby. "Our role in considering an insufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses [citation], and we review the record in the light most favorable to the judgment [citation], drawing all inferences from the evidence which supports the jury's verdict. [Citation.]" (People v. Olguin (1999) 31 Cal.App.4th 1355, 1382.) The standard of review is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate "'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Defendant also argues the state of the evidence at the close of the prosecution's case was such that her motion pursuant to Penal Code section 1118.1 should have been granted. For the same reasons we find there was sufficient evidence to sustain the conviction, we reject this argument.
"'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' [Citation.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]" (People v. Lee (2003) 31 Cal.4th 613, 623.) "Intent to unlawfully kill and express malice are, in essence, 'one and the same.'" (People v. Smith (2005) 37 Cal.4th 733, 739.) Express malice either requires that a defendant desire the result or knows to a substantial certainty that the result will occur. (Ibid.)"There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions. [Citation.]" (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
Given the standard of review, this is not a close call. Defendant concealed her pregnancy for months, not seeking help from family, friends, or the baby's father. She then abandoned the naked, newborn infant within minutes of her birth. She did this despite her knowledge of alternatives, such as putting the child up for adoption or bringing the baby to the fire department. She thought someone might find her, but also knew the baby might die. She then went to check on her car to make sure it had not been towed before returning to the apartment to continue concealing what had taken place. These facts, regardless of any countervailing evidence, are more than sufficient substantial evidence from which the jury could conclude that defendant either wanted the infant to die or knew to a substantial certainty that death could happen.
The circumstances here are not that far different from a defendant who shoots a loaded weapon at an occupied vehicle. In such cases, the use of a lethal weapon is sufficient to infer an intent to kill, "even if the act was done without advance consideration and only to eliminate a momentary obstacle or annoyance." (People v. Arias (1996) 13 Cal.4th 92, 162.) Here, the "lethal weapon" was the mother's deliberate decision to abandon her child — particularly without any covering at all — leaving the child to suffer from the lack of warmth and care.
Sister state jurisdictions have found specific intent in similar circumstances, and we reject defendant's attempts to distinguish these cases. In Paige v. State (Ala.Crim.App. 1986) 494 So.2d 795 (Paige),an 18-year-old mother left the house where she was staying with friends with her one-year-old child. She discarded the baby in a storm drain and returned home, telling her friends that the child was staying with a relative. The baby was found unharmed by passersby. (Id. at p. 796.)
Like California, Alabama law requires specific intent, which may be inferred from the surrounding circumstances. (Paige, supra, 494 So.2d at p. 796.) "From the actions and words of this case, it was reasonable for the jury to find that the appellant had formed the requisite murderous intent; they could hardly have found otherwise." (Ibid.)
Similarly, in J.A.T. v. State of Georgia (Ga.Ct.App. 1975) 221 S.E.2d 702 (J.A.T.), the appellate court affirmed the delinquency finding after a 15-year-old girl delivered a baby at home without assistance, then placed the baby in a paper bag in a trash can outside her house. The baby was found unharmed by sanitation workers. (Id. at p. 703.) The court found the circumstances were sufficient to allow the trier of fact to infer the minor had the requisite attempt to commit murder. (Id. at pp. 703-704.)
The instant case is not far different from either Paige or J.A.T. In all three cases, the mothers abandoned their infants in circumstances that were certain to lead to death, had fortune and bystanders not intervened. As in those cases, the evidence was more than sufficient for the jury to infer defendant's intent.
Further, the jury was entitled to reject defendant's claim that her mental state at the time and her general lack of coping skills and low IQ precluded her from forming the specific intent necessary. We also reject defendant's argument that the jury's questions during deliberation indicated "confusion" or other problems during deliberations. This, however, is pure speculation. The jury was properly instructed, and it must be presumed the jurors understood and followed the instructions and the court's responses to any jury questions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
In sum, we find more than substantial evidence sufficient to sustain defendant's conviction for attempted murder.
Admissibility of Defendant's Statements
Defendant argues the trial court erred by precluding the defense's expert from repeating verbatim statements defendant made to the expert during their interviews. A trial court's ruling on the admissibility of evidence is reviewed for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 196-197 ["[i]n determining the admissibility of evidence, the trial court has broad discretion. . . . On appeal, a trial court's decision to admit or not admit evidence, whether made in limine or following a hearing pursuant to Evidence Code section 402, is reviewed only for abuse of discretion"]; People v. Alvarez (1996) 14 Cal.4th 155, 203 ["appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion"]; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885 ["[w]e review a trial court's decision to admit or exclude evidence under the abuse of discretion standard."].)
We need not belabor this issue. The court did not abuse its discretion by preventing Kaser-Boyd from reciting verbatim statements that defendant made to her about her background, her need for assistance from her father, or her mental state at the time she placed the baby in the dumpster, the areas specifically identified by defense counsel in opposition to this motion. Whether considered as a hearsay issue or under an Evidence Code section 352 analysis, the trial court could properly exclude defendant's verbatim statements as either unreliable or unduly prejudicial. (See, e.g., People v. Gardeley (1996) 14 Cal.4th 605, 618-619; People v. Bell (2007) 40 Cal.4th 582, 608.)
Further, the evidence defense counsel was concerned about came in through other means, rendering any error harmless under any applicable standard. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.) Plenty of background information about defendant was admitted at trial, in particular defendant's IQ and lack of problem-solving skills, both of which were part of the expert's testimony. Kaser-Boyd also testified that defendant tested positive on the coping deficient index, meaning she was not a good problem solver or able to consider alternatives. Both the expert and defendant's father testified about her educational history, including her delayed development, and the fact that she had been in special education classes. Her father testified that defendant continually needed help, and was able to work at "entry level, minimum wage type jobs." He also testified that she lived at home until her marriage to father
With respect to defendant's emotional state on the morning the baby girl was born, the jury had testimony from Blaszak ("dazed and confused") as well as her statements to him and to Brown that she was scared. Although defendant argues that her statements would somehow have been given more import by the jury had they been repeated verbatim by Kaser-Boyd, this is pure speculation. Indeed, the weight given Kaser-Boyd's opinions was demonstrated by the jury's decision to find the allegations of premeditation and deliberation false. Any error was harmless beyond a reasonable doubt.
Sentencing
Defendant next argues the trial court abused its discretion by denying her probation. A grant of probation is an act of judicial clemency, not a matter of right. (People v. Johnson (1993) 20 Cal.App.4th 106, 109.) "'The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]' [Citation.] 'In reviewing [a trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.' [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.)
California Rules of Court, rule 4.414, address the factors the court should consider when deciding to grant or deny probation. The rule enumerates a number of circumstances relating to both the crime and the defendant, including the seriousness of this crime as compared to other instances of the same offense, the degree of defendant's culpability as an active or passive participant, the vulnerability of the victim, whether the defendant inflicted emotional or physical injury. (Rule 4.414(a).) Facts relating to the defendant include prior criminal record, the defendant's physical or mental condition that may reduce culpability, defendant's remorse, the collateral consequences of imprisonment on the defendant and the family, and the defendant's ability and willingness to comply with probation. (Rule 4.414(b).)
Subsequent references to rules are to the California Rules of Court.
--------
"Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)" (People v. Weaver, supra, 149 Cal.App.4th at p. 1313.) Contrary to defendant's contention, the trial court's comments do not at all suggest it failed to consider or improperly analyzed the criteria.
The record here indicates that the trial court properly exercised its discretion, considering the gravity of defendant's crime, the probation report (which recommended against probation), letters from defendant's family members, and counsel's arguments. Defendant told the police she knew she had other options, yet she left a naked newborn in a dumpster. Rather than seeking readily available help, she chose to abandon the infant. The victim could not have been more vulnerable, and defendant's act could have resulted in serious physical harm or death. While her mental state may help to explain why she acted as she did, it does not outweigh her culpability, particularly given her knowledge of other options open to her. We find the trial court applied the guidelines properly, and there was no abuse of discretion.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: RYLAARSDAM, ACTING P. J. O'LEARY, J.