Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF124733A, Louis P. Etcheverry, Judge.
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, Acting P.J.
Following a jury trial, Josue Daniel Palma Herrera (appellant) was found not guilty of first degree murder but guilty of the lesser included offense of second degree murder (Pen. Code, § 187, subd. (a)) as well as fatal child abuse (§ 273ab). The trial court sentenced appellant to a term of 25 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
Appellant contends that he received ineffective assistance of counsel, that the prosecutor committed prejudicial misconduct, and that cumulative error occurred. We disagree and affirm.
FACTS
On August 30, 2008, just before 7:00 a.m., appellant, his live-in girlfriend Sabrina Romero, and Romero’s two-year-old son Guillermo (William) drove to Romero’s workplace and dropped her off. At the time William was fine, talking normally, and had no apparent injuries.
Around 9:00 a.m., Romero called appellant. She could hear William in the background playing with his toys and talking to himself.
Around 9:30 or 9:45 a.m., appellant called Romero and said that William had been jumping up and down on the bed and hurt himself. Romero asked appellant to bring William to her workplace so that she could see if he was okay. Romero then called Ruby Dominguez, who was William’s godmother and a certified medical assistant, and asked that she come and check William.
When appellant arrived with William, Romero saw foam coming out of William’s mouth. He did not respond when she called his name. Dominguez also saw foam coming from William’s mouth. His eyes were “flipped back, ” his hands were clenched, and his head was “pretty blown up.” Dominguez called 911.
Paramedics Larry Dano and Anthony Tubbs arrived around 10:20 a.m. They found William unconscious and unresponsive to physical and verbal stimuli. His eyes were rolled back in his head, and he was unable to track any movement. William was taken to a hospital where Dr. Jorge E. Montes, a pediatric critical care specialist, found him brain dead. Dr. Montes observed “a tremendous amount of damage and injury to [William’s] brain.” William died in the hospital.
Dr. Joseph Pestaner, a forensic pathologist, performed an autopsy on William, which revealed five separate areas of bruising to the head, three fractures of the skull, a few areas of bruising on William’s arms and legs, and hemorrhaging in and detachment of the retinas. The hemorrhaging in the head extended past the skull, through protective layers, to the brain. The pressure from the buildup of blood between the skull and the brain caused the skull to fracture. Dr. Pestaner opined that the injuries had occurred recent to William’s death, which was rapid. The head injuries were caused by blunt force, were abusive in nature, and were not consistent with a simple fall to the ground.
Appellant gave conflicting accounts of what had happened to William. When he called Romero and first brought William to Romero’s workplace, appellant said that William had fallen off the bed. During the 911 call, appellant said William slipped in the shower or on the bathroom floor and hit his head. In response to paramedic Dano’s questions, appellant said William fell while in the bathtub and struck his head. When a sheriff’s deputy on the scene asked Dano what had happened, appellant interjected that William was jumping and playing on the bed and fell off. When Dano asked appellant which story was correct, appellant said he was in the shower and when he got out, William was lying lifeless next to the bed. Romero and appellant drove together to the sheriff’s substation. While on the way, Romero asked appellant what had happened and he said William slipped and fell in the bathroom. And when questioned by police officer Marc Cooter at the substation, appellant said that, while he was taking a shower, William came into the bathroom, appellant heard a thump, and when he looked, William was lying on the bathroom floor.
The parties stipulated that, on the day in question, appellant was at a fitness gym from 7:20 a.m. to 8:36 a.m., based on a surveillance video provided by the gym.
Appellant’s defense was that the injuries could have occurred before the morning in question and were likely caused by Romero or “somebody else.” Appellant’s friends and family testified that William had a limp in one leg and was clumsy and often bumped into things; that Romero was an irresponsible mother and inflicted corporal punishment on William; that appellant did not discipline Romero’s child and Romero did not discipline appellant’s children; and that Romero had expressed to them that appellant did not and would not hit William.
DISCUSSION
1. Was counsel ineffective for failure to raise a Miranda objection?
Prior to trial, the prosecutor moved to admit appellant’s alleged statements to the paramedic Larry Dano and a portion of his Mirandized statements to Officer Cooter as admissions pursuant to Evidence Code section 1220. Defense counsel opposed the motion, arguing that the statements were not admissions. The motion was deferred, and it does not appear from the record that a formal ruling was rendered. The prosecution’s case-in-chief then presented appellant’s statements, without objection, through the testimony of Dano and Cooter.
Miranda v. Arizona (1966) 384 U.S. 436.
Appellant argues that counsel rendered ineffective assistance by failing to object to both his pre- and post-Miranda statements to Officer Cooter. Specifically, he contends that Cooter should have read him his constitutional rights before he asked him any questions at the substation and that subsequent Miranda warnings were inadequate. We find neither error nor ineffective assistance of counsel.
Procedural History
At trial, paramedic Dano testified that appellant gave differing versions of what had happened to William. Officer Cooter testified that, when he first questioned appellant and Romero at the sheriff’s substation, he did not have a “clear” or “real” understanding of the situation and asked both appellant and Romero “what was going on” and “why are we here.” Cooter stated that appellant was not under arrest at the time.
According to Officer Cooter, appellant told him that he and Romero lived together, that he had driven Romero to work that morning and then returned home with William. While appellant was taking a shower, he heard a thump, looked out of the shower and saw William lying on the floor of the bathroom. Appellant told Cooter there had been nothing to suggest something was wrong with William when he drove Romero to her workplace and then returned home. Cooter estimated that this conversation with appellant lasted about three minutes. He and Officer Randy Milligan then drove appellant and Romero to the police station.
While appellant was at the police station, Officers Cooter and Milligan drove to the hospital, some 20 miles away, where Cooter learned that William had suffered skull fractures caused by great external force and that appellant had given different versions of what had happened. When the officers returned to the police station, Cooter arrested appellant and advised him of his Miranda rights. Appellant waived his rights, and a portion of his subsequent recorded statement was played to the jury. In the clip, Cooter accuses appellant of changing his story. Appellant responds by saying that he is nervous and “not a good speaker, ” that people must have misunderstood him, and that “I guess that’s on them.” When Cooter responds, “No it’s not, it’s on you. These are professional EMTs, ” appellant says, “Yeah.”
Applicable Law and Analysis
In order to demonstrate ineffectiveness of counsel under the federal or state Constitution, a defendant must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1988) 44 Cal.3d 883, 937.) Additionally, “the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. [Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 349.)
To invoke the protections of Miranda, a suspect must be subjected to a “custodial interrogation, ” i.e., he or she must be “taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.” (Miranda v. Arizona, supra, 384 U.S. at p. 444.) “[T]he ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” (California v. Beheler (1983) 463 U.S. 1121, 1125, quoting Oregon v. Mathiason (1977) 429 U.S. 492, 495.) Where no formal arrest has taken place, the pertinent question is “how a reasonable man in the suspect’s position would have understood his situation.” (Berkemer v. McCarty (1984) 468 U.S. 420, 442.) The second component of custodial interrogation is interrogation, which is defined as express questioning or its “functional equivalent, ” i.e., by words or actions on the part of the police that they should know are “reasonably likely to elicit an incriminating response.” (Rhode Island v. Innis (1980) 446 U.S. 291, 303; see People v. Mickey (1991) 54 Cal.3d 612, 648.)
We agree with the People that appellant was not subjected to custodial interrogation while at the sheriff’s substation and no Miranda warnings were required at that time. Appellant and Romero drove themselves to the sheriff’s substation. Officer Cooter arrived at the substation having no knowledge of the crime. He then spoke to Romero and appellant to determine what had happened. This initial conversation lasted about three minutes and appellant was not under arrest at the time.
Preliminary investigative inquiries, such as identifying information and place of the incident, do not amount to interrogation for Miranda purposes, even if they take place in a station house. (See People v. Morris (1991) 53 Cal.3d 152, 198, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; California v. Beheler, supra, 463 U.S. at p. 1125.) And there was nothing to suggest that a reasonable person in appellant’s position was not free to leave or was under arrest. (People v. Stansbury, supra, at pp. 831-832 [“A reasonable person who is asked if he or she would come to the police station to answer questions, and who is offered the choice of finding his or her own transportation or accepting a ride from the police, would not feel that he or she had been taken into custody”].) Accordingly, appellant’s response to Officer Cooter’s initial questions was admissible since it was not taken in violation of Miranda.
Appellant also contends that the Miranda warnings given him were ineffective in this case and his postwarning statements were therefore also inadmissible. We disagree.
In Missouri v. Seibert (2004) 542 U.S. 600 (Seibert), on which appellant relies, police questioned the defendant while she was under arrest for 30 to 40 minutes before she confessed. After a 20-minute break, she was given Miranda warnings and signed a waiver of rights. Confronted with her prewarning statements, she confessed again. (Seibert, supra, at pp. 616-617.) The officer who questioned the defendant testified during the suppression hearing that he had made a “‘conscious decision’ to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught, ” namely, “question first, then give the warnings, and then repeat the question” until the defendant provides the answer he or she had “already provided once.” (Id. at pp. 605-606.)
A plurality of the United States Supreme Court determined that a Mirandized “repeated statement” taken immediately after police first obtained an incriminating statement without giving Miranda warnings is inadmissible “[b]ecause this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda’s constitutional requirement.” (Seibert, supra, 542 U.S. at p. 604.) The Seibert plurality reasoned that “[t]he object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.” (Id. at p. 611.)
But here, no such “midstream recitation of warnings after interrogation and unwarned confession” occurred. (Seibert, supra, 542 U.S. at p. 604.) First, as we noted above, before advising appellant of the Miranda warnings, appellant was not under custodial interrogation when Officer Cooter first spoke to him. Second, during this brief questioning, while appellant gave a different version of the event than he had previously, he did not confess. And finally, between the initial questioning of appellant and being arrested and given his Miranda warnings, a substantial period of time ensued as Cooter drove to the hospital some 20 miles away, spoke to medical personnel, and then returned to the police station. Appellant’s postwarning statements were therefore not inadmissible under Seibert.
Because we find no error on the basis of a Miranda violation, it cannot be said that counsel’s performance was deficient. Furthermore, the evidence, even without statements made to Officer Cooter, was obviously overwhelmingly persuasive to a jury. William suffered severe injuries, as testified to by medical personnel and buttressed by autopsy findings. He had numerous bruises on his arms and legs, his retinas were detached, and he had severe hemorrhaging of the brain and fractures to the skull. Examination of samples of brain tissue showed that the injuries were recent and that death was rapid, refuting the defense theory that the injuries could have occurred earlier. Appellant was the only person with William between the time when he dropped Romero at work at 7:00 a.m. and when he telephoned Romero around 9:30 or 9:45. The autopsy also indicated that the injuries were caused by significant force and were not consistent with a simple fall to the ground, as appellant claimed. Moreover, appellant’s changing stories were properly admitted through the testimony of Romero, Dominguez, the 911 tape, and paramedic Dano.
Appellant has not established ineffective assistance of counsel.
2. Was counsel ineffective in cross-examining the forensic physician?
Appellant also contends he received ineffective assistance of counsel when his attorney cross-examined Dr. Pestaner, the forensic physician. We disagree that prejudicial error occurred.
Procedural History
At trial, the prosecutor questioned Dr. Pestaner on the injuries William sustained. Dr. Pestaner listed various types of injuries, including “retinal hemorrhaging” of the eyes. On cross-examination, defense counsel asked Dr. Pestaner what had caused the retinal detachment. Dr. Pestaner responded, “[I]t would be from these injuries.” Seemingly not understanding Dr. Pestaner’s explanation, defense counsel continued to question him:
“Q. But it is caused because there is hemorrhaging in the what, veins going up to the eyes that caused the retina to detach?
“A. I mean it would be from—it is a traumatic finding. So we have head injuries, blunt force trauma, so
“Q. I don’t mean just in terms of what actually happened in the eye. I mean, somebody didn’t go in there and pick out the retina. I mean, something pushed at it. Or was it
“A. Well, there is significant force when you apply and fracture your skull. I mean, there’s forces being applied. In this case we have bruising of the brain, … you get blows to the head and it is potentially going to affect other parts. [¶] … [¶]
“Q. Would you expect that in a head injury to the back of the head?
“A. Well if it is of significant force.
“Q. And it is just kind of what, vibration transfers through?
“A. There is being force transferred. A lot of work has been done—in child abuse has been on shaking impact, shaken baby syndrome, where you have retinal hemorrhaging and you have subdural hemorrhaging. And that’s why actually the eyes are routinely examined in these sorts of cases because the kinds of force to cause retinal hemorrhaging is a different kind of force than just translational or being pushed from front to back, it is rotational. So a shearing type injury is what is thought to cause some of this eye injury. And there is just a great deal of literature about that. And it is just kind of standard operating procedure to have those eyes examined.
“Q. Okay. And so it sounds like it is not unusual that in a child abuse case involving the head that you would find retinal detachment.
“A. Well, it is not. In abuse cases it is a little unusual, matter of fact, yes.
“Q. When you say … shearing force or a lateral force?
“A. [T]he shaking … is somewhat controversial as to whether that alone can cause where you violently shake a child. And in those sorts of cases where you don’t have impacts, like in this case we have all these bruises to the head, but if you have a true what is considered a shaking baby, shaking child syndrome type situation, you don’t have the impacts. The findings are retinal hemorrhaging and subdural hemorrhage. You wouldn’t have all these other findings that we have.…”
Appellant contends that the “harmful nature of this line of inquiry, ” which was emphasized by the prosecutor in redirect and closing, “provided the prosecution with the most telling and dramatic affirmation of the prosecution theory, ” resulting in ineffective assistance of counsel.
We disagree. Even if we assume that trial counsel was ineffective in this line of questioning, appellant cannot show prejudice under a test of reasonable probability of a different outcome. (People v. Ledesma, supra, 43 Cal.3d at pp. 216-218.) The injuries to William’s head showed that significant and abusive force was applied, contrary to appellant’s assertion that William fell. Examination of the tissue samples showed that William’s injuries occurred recently and that his brain death was rapid, refuting any defense theory that the injuries occurred earlier. Appellant was the only person with William before the injuries occurred, refuting his claim that someone else could have been responsible for them. It is not reasonably probable that the result would have been different had there been no explanation of retinal hemorrhaging and detachment. We reject his claim to the contrary.
3. Did the prosecutor commit prejudicial misconduct during closing?
Appellant contends that, in two separate ways, the prosecutor committed misconduct and thus violated his right to due process and a fair trial. He asserts the prosecutor engaged in misconduct in his closing argument, when he improperly stated the law on reasonable doubt, and again when he vouched for a police officer witness. We disagree.
“‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s … intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’ [Citation.]” (People v. Navarette (2003) 30 Cal.4th 458, 506.)
Prosecutorial misconduct requires reversal only if it prejudices the defendant. (People v. Fields (1983) 35 Cal.3d 329, 363.) Where it infringes upon the defendant’s constitutional rights, reversal is required unless the reviewing court determines beyond a reasonable doubt that the misconduct did not affect the jury’s verdict. (People v. Harris (1989) 47 Cal.3d 1047, 1083.) Prosecutorial misconduct that violates only state law is cause for reversal when it is reasonably probable that a result more favorable to the defendant would have occurred had the prosecutor refrained from the objectionable conduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
The issue of prosecutorial misconduct is forfeited on appeal if not preserved by timely objection and request for an admonition in the trial court. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) If an objection has not been made, “‘“the point is reviewable only if an admonition would not have cured the harm caused by the misconduct”’” (id. at pp. 1000-1001) or if an objection would have been futile (People v. Hill (1998) 17 Cal.4th 800, 820-821).
Here, defense counsel never objected on the grounds of prosecutorial misconduct and did not request that the jury be admonished, thereby forfeiting the claim on appeal. (People v. Cunningham, supra, 25 Cal.4th at p. 1000.) But even on the merits, we find appellant’s claims lacking, and for that reason we do not need to discuss his further claim of ineffective assistance of counsel for failing to object.
Appellant points to the following two instances in which he claims prosecutorial misconduct occurred.
First, at the commencement of trial and prior to accepting any evidence, the trial court instructed the jury with CALCRIM No. 220 (reasonable doubt). During closing argument, the prosecutor addressed the beyond a reasonable doubt burden of proof. In relevant part, the prosecutor argued:
“You know, over the years I have had so many instances where judges have been talking to jurors, kind of like we did last week, where you are sitting here and hoping goodness, I hope for some reason I’m not going to be sitting on this trial forever or whatever. And the jurors might discuss with the judge what their feelings about reasonable doubt is or their belief about what reasonable doubt is. And they might say something like oh, it means you are sure there is no doubt. I wouldn’t want to convict anybody unless I was sure he did it. I would want to be certain. That sort of thing. And, the judges always say, well, guess what, there is going to be doubt, there always is going to be doubt, especially if you weren’t there yourselves to see it with your own eyes. There is always going to be doubt in any criminal case. [¶] Because of that, just like the instruction says, the question is not whether there is a doubt, the question is whether or not that doubt is something that you can really sink your teeth into. The question is whether that doubt is a reasonable one.” (Italics added.)
The italics indicate the words of which appellant complains.
After argument concluded, the trial court again instructed the jury with CALCRIM No. 220. In addition, the trial court instructed the jury with CALCRIM No. 200 (duties of judge and jury).
We do not find the challenged remarks objectionable when considered in their entirety. Immediately prior to the statement to which appellant objects, the prosecutor stated,
“This is how the law defines it, proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.”
This statement by the prosecutor is the exact language used in CALCRIM No. 220 to instruct jurors on reasonable doubt.
The prosecutor did not suggest inappropriately a specific quantitative measure as has been found improper in other cases. (See, e.g., People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1267-1268 [prosecutor argued, with use of a Power Point presentation showing six of eight pieces of a Statue of Liberty puzzle, that reasonable doubt standard had been met].) Nor did the prosecutor trivialize inappropriately the standard as one people use and apply every day in their lives. (People v. Nguyen (1995) 40 Cal.App.4th 28, 36.)
In any event, in light of the instructions provided to the jury, we cannot conclude any of the prosecutor’s remarks, even if objectionable, were prejudicial. The jury was instructed with CALCRIM No. 200, which provides in relevant part: “You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” The jury was then instructed with CALCRIM No. 220, explaining the burden of the prosecution to prove guilt beyond a reasonable doubt and defining reasonable doubt.
“‘We presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ [Citation.] Given the instructions provided here, we discern no reasonable likelihood [citation] that the prosecutor’s statements would have misled the jury.…” (People v. Mayfield (1993) 5 Cal.4th 142, 179.)
Appellant also argues that the prosecutor improperly vouched for Officer Milligan and the police department, claiming they had conducted a thorough investigation. At trial, defense counsel called Milligan, who had responded to the sheriff’s substation and took appellant to his apartment where appellant walked the officer through the apartment and described the incident. Milligan noticed a bar of soap on the floor of the “very small” bathroom. At the police station, Milligan spoke to Romero, who said she had heard water and believed appellant was shaving when she called him at 9:00 that morning. She also told Milligan that William had a leg disorder, that his left leg “was slanted inward, ” and that he often tripped and fell over his leg and bumped into things. Milligan received information from a physician that family members of William had told him appellant had assaulted William two weeks earlier. Although Milligan did not question Romero about the abuse, he did speak to Dominguez and other family members about it. He did not question Romero further because she was, at the time, “emotionally unsteady.”
On cross-examination, Officer Milligan testified that appellant never mentioned having been to the gym on the morning in question. He also described Romero as being “very upset and very concerned about the welfare of her child” during his interview with her. While Romero repeatedly asked the officer about the condition of her child and was anxious to get to the hospital, Milligan testified that appellant was “very calm” and did not ask about William’s condition or ask to see him.
In closing, the prosecutor argued the following:
“[Defense counsel] said nobody ever grilled [Romero]. Well, that’s because she is not telling a bunch of different stories. Ladies and gentlemen, I asked [Officer] Milligan. I mean, is there anything that in any way, shape or form, all of this investigation you did and everything else regarding the prior abuse and all that, is there anything that pointed at [Romero]. No, there wasn’t. Nothing. Nothing. I mean, if there were, certainly they would have gone after her. But we don’t get to make the stuff up either. There is not, so they didn’t. She told the detectives the same story that she told on the stand. She didn’t start going from one to the other to the next. I mean, it just didn’t happen.”
A prosecutor is entitled to comment on the credibility of a witness based on evidence adduced at trial. (People v. Thomas (1992) 2 Cal.4th 489, 529.) Prosecutorial assurances regarding the honesty or reliability of a prosecution witness, supported in the record, do not constitute improper “vouching.” (People v. Medina (1995) 11 Cal.4th 694, 757.) What a prosecutor may not do is to suggest that he or she has information undisclosed to the jury bearing on the issue of credibility, veracity, or guilt. The danger in such remarks is that the jurors will believe that some inculpatory evidence, known only to the prosecution, has been withheld from them. (People v. Padilla (1995) 11 Cal.4th 891, 946, overruled on another ground in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1; People v. Green (1980) 27 Cal.3d 1, 35.)
Here, the prosecutor was emphasizing why Officer Milligan had not considered Romero a suspect, noting the lack of evidence implicating her. The prosecutor’s comments merely reiterated what the jury already knew: that Romero had given one version of the events and did not vary from it, giving the officers no reason to suspect her. In doing so, the prosecutor did not improperly vouch for Milligan or the police department.
4. Cumulative error
In conclusion, appellant argues that the cumulative impact of the above argued errors deprived him of a fair trial. We disagree. We have either rejected appellant’s claims of error or found any errors, assumed or not, to be not prejudicial on an individual basis. Viewing the errors as a whole, we conclude they do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: KANE, J., POOCHIGIAN, J.