Opinion
E065890
07-05-2018
THE PEOPLE, Plaintiff and Respondent, v. KAREN CRUZ, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amanda E. Casillas, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1403375) OPINION APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, Karen Cruz, forcefully shook and tossed her baby, causing him to suffer brain trauma. Following a jury trial, defendant was convicted of child abuse. (Pen. Code, § 273a, subd. (a).) Defendant was subsequently placed on formal probation for four years and ordered to serve 270 days in county jail.
On appeal, defendant contends the trial court prejudicially erred in admitting into evidence statements she made in her second police interview. The People argue defendant forfeited this objection on appeal by failing to raise it in the lower court. In the alternative, the People argue that defendant's objection lacks merit and that any error was harmless. Following a thorough review of the record, we conclude defendant did not forfeit her objection on appeal, but we reject it on its merits. Therefore, we affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant's Baby
Towards the end of her pregnancy, defendant chose to deliver her baby by cesarean section. During the cesarean, the doctor was not able to extract the baby with a vacuum cup because his head was not in the correct position. The doctor instead extracted the baby by his head with forceps without signs of trauma or visible injuries to his head. The baby also showed no signs of trauma or abnormal head circumference at both 10 days old and two months old.
However, when the baby was three months old, his father noticed his head was warm and swelling, so much so that it seemed his head was about to "bust." A month later, the doctor ordered an ultrasound to investigate the baby's rapid head growth. The doctor referred the baby to Loma Linda University Children's Hospital (Loma Linda) for surgery because the ultrasound revealed an accumulation of blood between his brain and skull. After surgery, the chief of forensic pediatrics at Loma Linda determined that the baby's condition was best explained by nonaccidental physical abuse.
B. Defendant's First Interview
While defendant's baby was in the hospital, Detective Yanez from the San Bernardino Police Department asked defendant to appear at the station for an interview. Detective Yanez informed defendant that she was not required to submit to an interview. Defendant nevertheless appeared and submitted to her first videotaped interview.
During the interview, defendant acknowledged that she was a stay-at-home mother and her baby's principal caregiver. She also revealed that she had shaken and thrown her baby down into his playpen when he was approximately two-and-a-half months old. Defendant recounted how her baby's head "bounced up" when she threw him down and how she believed this incident could have caused her baby's brain to bleed. Defendant also explained that she had not told anyone about this incident because she was scared and nervous. At the end of the interview, defendant agreed to return the next day.
C. Defendant's Second Interview
The next day, Detective Heard initiated defendant's second interview. Detective Heard told defendant she was not under arrest and was free to leave. After a preliminary discussion, Detective Heard had defendant undergo a polygraph examination. Defendant once more explained that she may have caused her baby's brain to bleed by "not placing him down right" and that she would move her baby's playpen back and forth to put him to sleep. Defendant again said that she was the only one responsible for her baby's care. After defendant completed the examination, Detective Heard left the interview room and his superior entered. The superior told defendant that the polygraph examination indicated she had injured her baby. The superior left the room when Detective Heard returned.
Detective Heard told defendant that Detective Yanez was there to "work" for her baby. Detective Heard also urged defendant to assist him in helping Detective Yanez and her baby. Although defendant said she was "here for" her baby, Detective Heard responded that he was "not sure you're here for [your baby] yet. Because you're withholding. You're withholding information. If you're really here for [your baby], get it out and let's let the doctors know. That way they can treat [your baby] the proper way. . . . The doctor's need to know. All right. Right now, this is for [your baby]." Defendant responded by describing how she rocked her baby in his playpen and how she was frustrated and angry half of the time when she did this.
Detective Yanez then entered the room and Detective Heard left. Detective Yanez explained to defendant that the baby's treatment depended on the doctor knowing how the baby was injured and that the purpose of disclosure was to protect the baby from brain damage. Detective Yanez used hypotheticals to communicate her need for defendant's cooperation. Detective Yanez portrayed defendant as a mother that gets "her kids back" because she realizes that she "lost her cool" and "needs classes." Defendant responded by again recounting how she would rock the baby with "more of a hardness" when she was upset. Defendant also expressed her belief that her rocking the baby may have harmed him. Detective Yanez twice told defendant she would go home. Detective Yanez continued to urge defendant to reveal how hard she had shaken the baby and again warned defendant that her failure to disclose such information could prevent her baby from receiving adequate medical care.
Defendant responded that the roughest handling of the baby was her throwing him into the playpen. On that occasion, defendant said she threw her baby down from a distance of about 28 inches, onto a mattress that she said was "[l]ike thick wood." Defendant began to cry and revealed that she had not told the doctor about throwing the baby into the playpen because she felt guilty. Defendant also told Detective Yanez, "I don't even care if you arrest me." Defendant was then escorted out of the interview room and left the station.
D. Defendant's Objection to Admission of Second Interview
During a pretrial hearing, defense counsel requested that the court exclude the polygraph examination portion of her second interview and determine whether defendant freely and voluntarily participated in the interview. The court stated its intention to allow the statements into evidence, but offered defense counsel an opportunity to show how admission of a redacted second interview would prejudice her. Defense counsel did not attempt to make such a showing. The court then admitted both the first interview video and a redacted version of the second interview video, which excluded all polygraph examination references.
III.
DISCUSSION
Defendant argues the trial court prejudicially erred in admitting into evidence statements she made in her second interview because, under the totality of the circumstances, her statements were made under psychological coercion and were involuntary within the meaning of the Fourteenth Amendment. Defendant believes her statements were psychologically coerced because she was promised leniency and the detectives told her that her baby would not receive proper medical treatment if she did not confess to child abuse. She further argues she preserved the issue on appeal and any failure to have done so was the result of ineffective assistance of counsel. Finally, defendant asserts admission of the second interview was prejudicial error requiring reversal of her conviction.
The People argue that defendant forfeited her objection on appeal because defendant failed to ask the trial court to rule on whether there was psychological coercion. This denied the People an opportunity to produce the entire second interview video to demonstrate there was no coercion. The People argue in the alternative that defendant's claim lacks merit and that any error was harmless.
A. Forfeiture
Preliminarily, we reject the People's claim defendant forfeited her objection to admission of her second interview statements. The general rule is that "'questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal."' (Evid. Code, § 353, subd. (a); People v. Smith (2007) 40 Cal.4th 483, 520.) In particular, a claim of involuntariness of a confession, such that a confession or admission to the police should be excluded from evidence, will not be addressed for the first time on appeal. (People v. Storm (2002) 28 Cal.4th 1007, 1028, fn. 10; People v. Ray (1996) 13 Cal.4th 313, 339 (Ray).) This court will not consider an objection if not first raised in the trial court because the issue involves a factual matter that should be decided by the trial court. (People v. Williams (2010) 49 Cal.4th 405, 446; People v. Storm, supra, at p. 1028, fn. 10; Ray, supra, at p. 339.) Nonetheless, an objection to evidence under Evidence Code section 353 need not be in any particular form. (People v. Gibson (1976) 56 Cal.App.3d 119, 137.) Even if an objection "was not properly phrased" or "stated in the most precise terms," it will not have failed in its purpose as long as "all the parties, including the court, must have understood the purpose of the objection." (People v. Briggs (1962) 58 Cal.2d 385, 410; People v. Bob (1946) 29 Cal.2d 321, 326-327.)
Here, the record shows defense counsel advised the court before trial that defendant wanted to exclude the polygraph portion of her second interview transcript and the video because the circumstances of the interview showed her statements were involuntary. Defense counsel expressed his concern to the court that the second interview transcript suggested defendant had a "mindset" in which she was resigned to being arrested for the sake of her child's safety, as a result of being pressured by the detectives. The prosecution responded that defendant was under no coercion during the interview, given her voluntary appearance, the detectives repeated assurances that she was not under arrest, and the mood of the interview room, as revealed by the video. The court concluded that given "the totality of the circumstances, a reasonable person in the defendant's shoes would have perceived she was free to leave and not in custody. So for that reason, I don't believe there was a violation of the Fifth Amendment. I don't believe that Miranda was required, so I'm not going to exclude the statement." The court also offered defense counsel an opportunity to make his record. Defense counsel indicated he wished to pursue the issue of admissibility and work with opposing counsel on an agreement regarding the second interview's final contents. The court stated it would "wait to hear from you on that issue." It is not clear from the record whether an agreement with opposing counsel was ever reached or pursued.
Even so, the record shows that all the parties and the court understood that defendant objected to the involuntary nature of defendant's second interview confession, based on the allegedly coercive conduct of the detective interviewers. Although defendant did not expressly object to admission of her second interview statements based on psychological coercion, the prosecutor's and court's statements indicate they understood defendant was objecting on that ground.
"In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented." (People v. Scott (1978) 21 Cal.3d 284, 290.) Additionally, "an evidentiary issue should be addressed on appeal even if it was only marginally preserved when the question of its preservation 'is close and difficult."' (People v. Wattier (1996) 51 Cal.App.4th 948, 953.) Accordingly, we conclude defendant did not forfeit her objection to admission of her second interview statements and need not address defendant's ineffective assistance of counsel claim.
B. Voluntariness of Second Interview Statements
1. Standard of Review
"Voluntariness is a legal question subject to independent review." (People v. Winbush (2017) 2 Cal.5th 402, 452.) That is, "'[o]n appeal, the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to the voluntariness of the confession is subject to independent review.'" (People v. Haley (2004) 34 Cal.4th 283, 298.) When the confession is recorded, as in this instance, the facts surrounding the confession are undisputed, and this court independently reviews the determination of voluntariness. (People v. McWhorter (2009) 47 Cal.4th 318, 346 (McWhorter).)
2. Analysis
Federal and state constitutional principles prohibit a conviction based on an involuntary confession. (People v. Massie (1998) 19 Cal.4th 550, 576.) A confession is involuntary if it was not the product of a "rational intellect and free will," that is, the confession was not self-determined because the defendant's will to resist was "overborne." (McWhorter, supra, 47 Cal.4th at pp. 346-347.) In evaluating whether a defendant's will to resist was overborne, courts apply a "'"totality of circumstances"'" test (People v. Haley, supra, 34 Cal.4th at p. 298), examining all of the circumstances surrounding the confession, including the defendant's characteristics and the details of the interrogation. (McWhorter, supra, at p. 347.) Relevant factors include: the interrogation length, location, and continuity; defendant's maturity, education, physical condition, and mental health; and the "'crucial element'" of police coercion. (People v. Winbush, supra, 2 Cal.5th at p. 452; People v. Haley, supra, at p. 298.) Accordingly, we must conclude that defendant's second interview statements were voluntary and not psychologically coerced if we find, under the totality of the circumstances in the record, that defendant's will was not overborne by psychological coercion and that defendant's confession was self-determined.
There is no evidence in the record that defendant was emotionally susceptible to psychological coercion during the second interview or that the interview was conducted in a coercive environment. Defendant was both literate and college educated. Defendant believed she had gone through postpartum depression but attested to not having been in the care of a psychologist or psychiatrist and to never having attempted suicide. While she was a diabetic and had suffered from dizziness or fainting spells, she was not experiencing dizziness or fainting spells at the time of her second interview. Furthermore, the circumstances of her second interview were ordinary. Her second interview began at around 2:00 p.m. and lasted about two hours, one hour conducted by Detective Heard and another hour by Detective Yanez.
As for coercive police activity, the record does not show that Detective Heard's or Detective Yanez's questions or techniques were psychologically coercive. Detective Heard and Detective Yanez did not threaten defendant with arrest. On the contrary, defendant was repeatedly told by both detectives that she was not under arrest. That defendant understood and believed she was not under arrest was confirmed by her declaration that she did not care whether the detectives arrested her. Defendant thus did not fear being arrested when she confessed to mistreating her baby.
Defendant argues that Detective Heard and Detective Yanez used other "improper fear tactics" to coerce defendant to confess. Specifically, defendant contends that Detective Heard and Detective Yanez made a "veiled promise" that defendant's baby would receive proper medical care and be returned to her if she cooperated and confessed. Defendant maintains that their promise was not truthful and constituted an implicit threat that her baby would not be returned if she did not cooperate and confess. While we do not condone the interview techniques and acknowledge they were manipulative and perhaps deceptive, we still reject defendant's argument. Defendant's statements during both interviews were consistent and reliable.
Express or implied promises of leniency or advantage can be "'"sufficient to invalidate [a] confession and to make it involuntary and inadmissible as a matter of law."'" (Ray, supra, 13 Cal.4th at p. 339.) However, "investigating officers are not precluded from discussing any 'advantage' or other consequence that will 'naturally accrue' in the event the accused speaks truthfully about the crime." (Id. at p. 340.) "[M]ere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary." (People v. Holloway (2004) 33 Cal.4th 96, 115.) Defendant received advice and exhortation from Detective Heard and Detective Yanez, but was never threatened or told that she would not get her baby back. Detective Heard and Detective Yanez expressed their beliefs that defendant was withholding information and urged her to explain how she mistreated her baby to ensure that he received proper medical treatment.
Detective Yanez did appeal to defendant's conscience by suggesting there would be consequences arising from not disclosing how the baby was injured. Detective Yanez also used hypotheticals to discover defendant's motivation for not cooperating with the police. One of the hypotheticals indicated that a mother would get "her kids back" if she disclosed that she "lost her cool" and "needs classes." To be sure, these techniques were manipulative and designed to elicit information. They did not, however, amount to impermissible psychological ploys. Only those psychological ploys that, "under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable" have been prohibited by the courts. (Ray, supra, 13 Cal.4th at p. 340.) While we do not condone deceptive interview techniques, "[d]eception does not undermine the voluntariness of a defendant's statements to the authorities unless the deception is '"'of a type reasonably likely to procure an untrue statement.'"'" (People v. Hensley (2014) 59 Cal.4th 788, 813.) In this case, the statements defendant made in her second interview expanded on what she had already stated in her first interview. Defendant's second interview statements were thus as reliable as the statements she freely made in her unobjectionable first interview. Consequently, regardless of whether the interview techniques were manipulative or deceptive, the techniques were not so psychologically coercive that they produced a confession that was both involuntary and unreliable. In fact, the statements were both reliable and consistent with the statements defendant made during her first interview.
Furthermore, defendant's second interview statements were not involuntary because they were not the direct result of coercive police conduct. (McWhorter, supra, 47 Cal.4th at p. 347; Colorado v. Connelly (1986) 479 U.S. 157, 164.) There must be a proximate, "'but for'" causal connection between the allegedly coercive conduct and defendant's confession, since "causation-in-fact is insufficient." (People v. Tully (2012) 54 Cal.4th 952, 985-986.) During her second interview, defendant was not motivated to confess by the fear of arrest, by the fear her baby would be denied proper medical treatment, or by any other fear instilled in her by the detectives. Defendant stated she felt "guilty" when Loma Linda's chief of forensic pediatrics inquired about the possible cause of her baby's condition because defendant knew that she was the only one responsible for her baby's care and that she had done something wrong. She soon followed that statement with the emotional declaration that she did not care whether the detectives arrested her. As demonstrated by this statement and ensuing conduct, defendant was directly motivated to confess by her own remorse, not by the interviewing techniques used by the detectives.
Defendant argues that her second interview statements should be deemed psychologically coerced and involuntary because confessions in cases "less egregious" than her own were held to be involuntary. In State v. Ruiz-Piza (2014) 262 Ore.App. 563, the state appealed the trial court's suppression of interview statements made by the defendant, who was indicted on five criminal counts for allegedly shaking his infant daughter. (Id. at p. 564.) The Ruiz-Piza defendant was offered a "stark choice" in his police interview: "[E]ither confess to accidentally shaking [the infant] and—in addition to securing better medical care—the officers would accept that version of events, or do not confess, and allow the officers to assume that the child had been abused." (Id. at p. 575.) Ruiz-Piza is factually distinguishable because defendant in the present case was not given such an ultimatum. In Lynumn v. Illinois (1963) 372 U.S. 528, the defendant was convicted of unlawful possession and sale of marijuana (id. at p. 529), while United States v. Tingle (9th Cir. 1981) 658 F.2d 1332 concerned a defendant convicted of "purloining funds" from a federal credit union (id. at p. 1333). Both cases involved police interviews in which the loss of the defendants' children was expressly threatened. (Lynumn v. Illinois, supra, at p. 531; United States v. Tingle, supra, at p. 1335.) No such threat was made to defendant in this case.
We conclude that nothing the detectives said or did to defendant was psychologically coercive. We therefore conclude that defendant's second interview statements were not psychologically coerced and were voluntary.
C. Harmless Error
Finally, we conclude that even if the trial court erred in admitting defendant's second interview statements, the error was harmless beyond a reasonable doubt.
"[A]s a matter of federal constitutional law, . . . the prejudice caused by the erroneous admission of [an involuntary] confession properly could and should be evaluated, for purposes of the federal Constitution, under the harmless-beyond-a-reasonable-doubt test." (People v. Cahill (1993) 5 Cal.4th 478, 482; Chapman v. California (1967) 386 U.S. 18, 23.) Whenever a confession admitted in a California trial "has been obtained by means that render it inadmissible under the federal Constitution, the prejudicial effect of its admission in evidence must be determined under the federal Chapman standard of whether the error was harmless beyond a reasonable doubt." (People v. Sims (1993) 5 Cal.4th 405, 447; Cahill, supra, at p. 510.) Consequently, "a state court, without violating the federal Constitution, . . . may affirm a conviction despite the erroneous admission of an involuntary confession, when the trial record establishes that the admission of the confession was harmless beyond a reasonable doubt." (Cahill, supra, at p. 482.)
In the present case, the trial record establishes that the admission of defendant's second interview statements was harmless beyond a reasonable doubt.
Defendant's physical abuse of her baby was the only plausible explanation for his head trauma. This conclusion is supported by the trial testimony of the chief of forensic pediatrics at Loma Linda. She concluded, based on the history and nature of the baby's injury, that the injury was caused by nonaccidental physical abuse. This testimony was unrefuted by defendant's expert witness.
The trial record further shows that defendant voluntarily confessed to child abuse during her first interview. The second interview did not produce a response that was unreliable. Defendant offered the detectives essentially the same information during each of her interviews. Defendant also raised no objection to the introduction of her first interview into evidence.
We thus conclude under Chapman that, if the trial court erred in admitting defendant's second interview statements, the error was harmless beyond a reasonable doubt. In sum, while the use of manipulative and deceptive interview techniques is not condoned, we are satisfied that defendant was not prejudiced in any way by the admission of her second interview statements.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.
Miranda v. Arizona (1966) 384 U.S. 436.