Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BA284029 of Los Angeles County, Rand S. Rubin, Judge. Affirmed.
Marks & Brooklier, Donald B. Marks and Elizabeth A. Marks for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Keung Han Kim, appeals from the judgment entered following his conviction, by jury trial, for assault on a child causing death, second degree murder, mayhem and child abuse, with enhancements for causing great bodily injury and causing injury resulting in the death of a child (Pen. Code, §§ 273ab; 187, 203, 273a, 12022.7, 12022.95). Sentenced to state prison for 25 years to life, Kim claims there was trial error.
All further statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
1. Prosecution evidence.
a. Events leading to the Tony’s death.
In November 2003, Jiye Kim (hereafter, “Jiye”) was living in Korea when she was introduced to defendant Kim, who was visiting from Texas. While Kim had lived in the United States for 18 years. Jiye had never been to the United States. She and Kim dated for about a month. After he returned to the United States, Kim proposed and they were married in Korea in May 2004. Kim again returned to the United States, while Jiye stayed in Korea for several more months.
Jiye discovered she was pregnant while she was still living in Korea. Kim’s initial reaction to the news was to say, “Oh, that’s a big problem. You should have been careful.” But after Jiye cried and asked, “Do you want me not to have the baby?”, Kim said, “Let’s just have the baby.” Jiye arrived in the United States in October 2004, and she joined Kim in Maryland, where he was working. Jiye testified that, at one point, she wanted to return to Korea because Kim “was yelling at me like a crazy person and it was so difficult for me emotionally.” In January 2005, they moved to Los Angeles where Kim’s family lived. Other than Kim and his relatives, Jiye did not know anyone in the community.
All further calendar references are to the year 2005 unless otherwise specified.
On February 9, Jiye gave birth to a son, Tony. Jiye’s mother came from Korea to help with the baby. When Tony was with Jiye he was happy and smiling, but when Tony was with Kim he cried a lot and Kim would say, “This jerk’s crying again.” Kim decided to sleep by himself in the bedroom because of Tony’s crying; Jiye and Tony slept in the living room. Jiye told Kim she had “heard that if you shake the baby something might go wrong with the brain and that you need to be careful.” On March 10, while giving Jiye a driving lesson, Kim got mad because she was doing badly. He hit her in the head and screamed, “Hey, you idiot, why don’t you just go live with your mother? I really can’t live with you anymore.” Jiye’s mother returned to Korea on April 9.
On the evening of April 10, Tony was in a baby swing in the living room when he began to cry. Kim said, “I really don’t want to see this jerk crying so why don’t we just put him in the room.” Kim took the baby swing and threw it about two or three feet into the bedroom. Tony suddenly stopped crying, although he did not show any sign of having been injured. Jiye was so shocked she fell to the floor. Kim kicked her several times and said, “Hey, get up. Don’t put up a show.” Kim then picked Tony up from the swing and shook him up and down several times, and Tony’s head moved back and forth. Jiye testified, “I was so startled and I was also very scared so I took the baby away from him and ran away to the front entrance area.” Kim yelled, “Give me the baby. Why aren’t you listening to me? Listen to me.” Jiye complied.
Over the next two days, Jiye tried to contact Tony’s pediatrician, but was unable to reach him. Then on the night of April 12, Tony had a seizure: he went pale, could not move his arms or legs, tilted his head back and made sounds like a purring cat. Still unable to contact the pediatrician, Jiye called Kim’s sister, Crystal, who lived in Valencia. Crystal’s husband, Yong Suk Seo, was a doctor of oriental medicine. Seo directed Jiye to take Tony’s diaper off, loosen his top and rub his chest.
The next morning, Jiye told Kim she was going with Crystal to take Tony to a new pediatrician. Kim asked if she was going to tell this doctor the truth. When Jiye said yes, Kim replied, “If you tell the truth, they’ll take the baby away.” Jiye believed him. Kim told her to say Tony had fallen off the bed. Because she feared losing Tony if she told the truth, Jiye told the new pediatrician a lie, although not the one Kim had directed her to tell. Instead, Jiye told the pediatrician Kim had accidentally dropped Tony while picking him up from the swing. Jiye did not say anything about Kim shaking Tony. The pediatrician referred Jiye to Children’s Hospital.
Dr. Daniel Hoh testified he spoke to Tony’s parents at the hospital on the night of April 13. One of them said Tony had suffered “a one- to two-foot fall from a bed.” Although Hoh could not recall which parent had given him this information, it would have been an English speaker because Hoh did not speak Korean. From other evidence presented at trial, it was clear the English speaker was Kim, not Jiye. Kim acknowledges in his appellate brief that he “provided a history to the Children’s Hospital that Tony K. had fallen off of a bed.”
May 21 was the 100th day since Tony’s birth, which is marked by a traditional celebration in Korean culture. The day before, in preparation, Jiye gave Tony a bath and clipped his fingernails. On May 21, Kim and Jiye took Tony to a photography studio and then had a picnic lunch in Griffith Park. At this time, Tony had no scratches or bruises on his head. While at the park, Tony was fussy and cried repeatedly. Kim walked around with him, at one point going behind a tree for several minutes. When they returned, Tony had scratch marks on his face. Kim said Tony had scratched himself. As they were getting ready to leave, Jiye saw Kim pinching the back of Tony’s neck.
The Kims returned to their apartment. After dinner, Jiye went into the bedroom while Kim stayed with Tony in the living room. Tony was fine at this point. Half an hour later, Tony started crying and Kim announced he would take him for a walk. Kim returned after 30 minutes, walked quickly into the bedroom, came back out, smiled and said calmly, “The baby’s sleeping.” Kim then went to a wardrobe and took out some clothes. He changed out of the shorts he had been wearing at the park and into a pair of long pants. Jiye asked where he was going and Kim said to meet his sister Crystal. Jiye asked why he would be meeting her at this hour. Kim did not respond. Instead, he went to the bedroom and returned with Tony, who was limp and bleeding from the nose. Kim said he thought Tony was having a seizure and he ran out of the apartment with the baby. Jiye ran to catch up with them. They drove to Children’s Hospital. Tony remained limp and did not respond to Jiye.
At the hospital, Jiye asked to speak to a doctor out of Kim’s presence “[b]ecause it seemed to [her] as if it wasn’t a seizure the baby was having.” She spoke to Dr. Terry Park and a clinical social worker named Andrea Boyard. Boyard testified that while a medical team was working on Tony in the emergency room, Kim would go over to where Jiye was sitting, “bend down and try to communicate with her and she would just wave him away” as though he were annoying her. When Boyard told Kim she was going to interview Jiye alone, as Jiye had requested, Kim got angry. He said Jiye “didn’t speak English and that he needed to be there to translate.” Boyard testified that, when she interviewed Jiye outside Kim’s presence, Jiye said that after Kim had shaken Tony a month earlier Tony had suffered a seizure. Jiye also said that when they took Tony to the hospital on that earlier occasion, she had been “instructed not to say anything, and that the baby was released.” Boyard spoke to Jiye before the police arrived at Children’s Hospital on the night of May 21.
Apparently Dr. Park, a Korean speaker, acted as an interpreter.
Tony never regained consciousness and he died, on September 3, after he was taken off life support.
b. The parents’ police statements.
At Children’s Hospital on the night of May 21, Jiye prepared a written statement at the request of a police officer. In that statement, Jiye said Tony had fallen from his swing on April 10 by accident. Jiye was later interviewed by Detective Katherine Gosser, who said it was important for her to tell the truth so the doctors could find out what was wrong with Tony. Jiye repeated that Tony had accidentally fallen from the swing and hit the back of his head on the floor.
Detective Mark Pursel arrived at Children’s Hospital shortly after midnight on May 22. Tony had a bruise on his forehead and a red mark on the back of his neck. Tony’s fingernails were cut very short.
In an interview with Detectives Gosser and Pursel, Kim described the April 10 incident: he had been moving Tony in his baby swing from one room to another and, “as he walked, he tripped and fell; that Tony fell out of the swing; that he fell face forward on the left side of his head.” In a subsequent written statement, Kim wrote that he “dropped the baby.”
Regarding the May 21 incident, Kim told the detectives that about 7:00 p.m., when Tony would not stop crying, he took him out for a 30-45 minute walk. During the walk, Tony had a seizure, stopped breathing, went stiff, and bled from the nose. Kim rubbed Tony’s chest for 40 seconds, but Tony remained cold, white and motionless. He did not resume breathing. Kim walked back to the apartment, put Tony down on the bed, and gathered some items to go to the hospital. He denied changing clothes. He did not want to alert Jiye that something was wrong with Tony, but she noticed as he was leaving. Kim told the detectives he did not call 911 because he thought he could get to the hospital quicker. About 30 minutes passed between the time Tony suffered the seizure and they arrived at Children’s Hospital.
Initially, Kim denied having ever shaken Tony in any manner whatsoever. Then he described an incident involving “a car seat or some kind of baby seat in the living room and the baby was crying.” Kim said “he picked up the baby, held the baby above his head,” and shook him “in an up and down motion but as well as a back and forth motion and that [Tony’s] head did move back and forward about an inch.” Kim said he did this because Tony had been crying, that he gets “frustrated and disturbed when the baby cries.”
On May 23, Pursel interviewed Kim at the Parker Center after Kim had spent the night in custody. Regarding the May 21 incident, Kim now gave various contradictory details. He said he had rubbed Tony’s chest for five minutes, that he had rushed back to the apartment when Tony did not respond, that during the earlier incident he had only shaken Tony in an up and down motion, and that he did not do it because Tony was crying but because “he was simply saying hello to the baby.”
Jiye was subsequently charged with child abuse. She ultimately pled no contest to being an accessory (§ 32) for lying about the April 10 incident. As part of her plea agreement, Jiye promised to testify truthfully against Kim in exchange for not serving any jail time.
c. Medical evidence.
Dr. Karen Imagawa, a pediatrician, was the director of the child abuse team at Children’s Hospital. Based on a review of the April 13 hospital record, Imagawa testified Tony had sustained a sub dural hematoma on the right frontal part of his brain. Imagawa was unable to determine if this injury had been accidental because Kim and Jiye provided conflicting histories. According to the hospital records, Kim said Tony had fallen from a bed, while Jiye said Tony had fallen from a swing. Imagawa was suspicious of the story that Tony had fallen off a bed because he was too young to roll over by himself, and because it was unlikely a fall from less then four feet would have caused a sub dural hematoma. Moreover, there was no sign of any external trauma consistent with a fall, such as soft-tissue swelling, a skull fracture, or skull bruising. Imagawa testified there was “no evidence of a skull fracture” in the records.
A subdural hematoma “is a collection of blood underneath the dura which is the covering over the brain.”
Imagawa testified that when Tony was admitted on May 21 he was suffering from significant brain damage. He was comatose and unresponsive to painful stimulation. He was not breathing and he had no heart rate. He had a sub dural hematoma on the left side of the brain, and bruising on the right side of his chest, on the back of his left shoulder and across his belly button. There were facial abrasions consisting of “two linear red marks across the left side of his face.” A red mark on the back of his neck could have been caused by pinching.
Imagawa opined the injuries Tony presented on May 21 were consistent with vigorous or violent shaking. Tony had retinal hemorrhages in both eyes, and retinal hemorrhaging was a symptom of shaken baby syndrome. His brain injury was not consistent with a rebleed from the April sub dural hematoma. Given a hypothetical based on the facts of this case, Imagawa opined Tony’s injuries must have occurred after Kim took him out for a walk on May 21: “[T]he incident had to happen after the last time this child was normal. You would not be acting normally with this devastating of a brain injury.”
Imagawa testified: “There was no evidence that there was any old bleed in that area, so no, this wouldn’t be a rebleed.” “[T]he severe brain injury that Tony had, that’s not consistent with a rebleed. You don’t get edema from a rebleed. You don’t get swelling of your brain from a rebleed. [¶] You can get swelling of the brain and . . . a new bleed from a new injury, not a rebleed.”
Dr. Ashok Panigrahy, a pediatric neuroradiologist who had been working at Children’s Hospital on May 21, testified he examined the “bone windows” from Tony’s April 13 and May 21 CAT scans. The scans did not show any soft tissue swelling, fractures or healing fractures. The April CAT scans showed acute sub dural bleeding in the right frontal area of the brain; “acute” meaning it had occurred within the past three days. The May CAT scans showed acute bleeding in the left frontal superior region of the brain, which was unrelated to the first subdural bleeding. Panigrahy opined there was no way the May 21 subdural hematoma could have been a rebleed from the April 13 subdural hematoma. Magnetics resonance imaging (MRIs) taken on June 24 showed axonal or neuronal damage in multiple regions of the brain. This meant there was infarction, or cell death, in the brain. Panigrahy opined the axonal injury could have been the result of a shearing force caused by shaking, which could have also caused the lack of blood flow to the brain. Panigrahy defined shaken baby syndrome as “trauma to the brain of a baby after consecutive [sic] shaking that results in significant neurological devastation.”
Dr. James Ribe, a senior deputy medical examiner, performed the autopsy on Tony. Based on that autopsy, the hospital records and other investigative materials, Ribe concluded Tony’s death was a homicide because he had died from abusive head trauma. Ribe based this conclusion on the clinical evidence of two episodes of subdural hematomas and significant retinal hemorrhages, plus the fact that the parental histories were incompatible with the clinical and autopsy findings. Ribe also concluded Tony had not suffered a skull fracture. Ribe initially thought he saw evidence of a possible skull fracture while doing the autopsy, so he requested a radiology consult and he performed a microscopic examination of a skull sample. The consulting radiologist, Dr. Boger, found no radiographic evidence of a skull fracture. Ribe’s microscopic examination revealed no evidence of a skull fracture.
Ribe testified: “What I saw at autopsy was that the occipital bone was pushed inward underneath, slightly underneath, these two parietal bones, and I considered the possibility that that might be a diastatic fracture of the lambdoid suture. Diastatic means along the suture line. [¶] Now, you might bear in mind that in infants such as Tony their cranial bones are not yet grown together so they’re flexible. They can move with respect to each other. [¶] And therefore a diastatic fracture would be very unusual, but it was a possibility.”
Ribe testified the May 21 injuries were severe and devastating. Tony would have displayed resulting symptoms “instantaneously.” “There could be movements of the child during the succeeding few minutes. He might vomit. He might make gurgling sounds. There could be convulsive movements of the extremity, but there would be no purposeful conscious activity.” If Tony had been lucid on May 21 before the walk with Kim, but then returned unconscious, then Ribe would conclude Tony’s injuries had been inflicted during the walk. The May injuries could not have been caused by rebleeding from the April injury or by a fall from a short height. The injuries were consistent with Tony’s having been violently shaken or strangled or suffocated. Ribe also concluded Tony’s condition on April 13 suggested he had been the victim of child abuse.
On June 2, Dr. Hollie Jackson, a pediatric neuroradiologist at Children’s Hospital, performed a cerebral perfusion test, also called a brain death study. The test showed there was very little blood going to Tony’s brain. Jackson also examined Tony’s CAT scans from April 13 and May 21. She testified she “looked at what we call bone windows to see if there were any fractures,” and that she was “certain” Tony had not sustained a fracture.
2. Defense evidence.
Kim’s sister, his brother-in-law and two friends testified he was a kind person who did not lose his temper, and that he was never rough with Tony.
Kim’s sister, Crystal, testified it was she who first met Jiye, and that she wanted Kim to marry Jiye. When Crystal and Jiye took Tony to the pediatrician on April 13, Jiye told the doctor Tony hit the back of his head when he was accidentally dropped, and that he had then suffered a 30-minute seizure two days later. Crystal denied telling Jiye the family would be dishonored if Crystal’s husband found out Kim had shaken Tony. On the day Crystal was scheduled to give a statement to the police, she canceled the appointment because she was sick. She left her phone number with the police, but they never called her to reschedule.
Crystal’s husband testified that, during their April 12 phone conversation, Jiye told him Tony had been injured when Kim “was trying to pick the baby up from the swing and dropped the baby and it looked like as if the baby had hit the back of his head on the floor.”
Dr. Ronald Gabriel, a child neurologist, testified the injuries Tony sustained on April 10 had been caused by an impact, not by violent shaking. He reached this conclusion for the following reasons: The parents told the emergency room doctors Tony had been dropped on his head. The C.T. Scan showed some soft tissue swelling in the back of the head. He agreed with “the original autopsy report . . . that there was what is called a diastatic [skull] fracture, that is to say, [a fracture at] the suture line where the bones come together.” While acknowledging Dr. Ribe had changed his opinion about the diastatic fracture after doing a microscopic examination, Gabriel relied on the fact Ribe’s follow-up report “noted new bone formation over the defect, which suggests to me [i.e., Gabriel] that this was new bone forming over the previous diastatic fractures.”
Gabriel agreed that looking at the bone windows was the best way to confirm a fracture, and he had reviewed the DVD provided by Children’s Hospital containing Tony’s CAT scans and X-rays. Although the hospital records indicated bone windows had been performed on the April 13 CAT scan, and that the results were negative, Gabriel testified he did not find any bone windows on the DVD. When he was asked if “the fact that this skull fracture overlaps a suture [made] it more difficult to see on a C.T. Scan?”, Gabriel replied, “The reason why there is some ambiguity here is because they did not do bone windows, which means they did not do a C.T. Scan . . . that highlights bone. Why they didn’t do it, I’ll never know, but it wasn’t done.”
Gabriel testified, “The best way to look at a bone fracture on the C.T. Scan is not from these pictures that highlight the brain but bone windows which highlight the bone. That would have been the best way to confirm this one way or the other.”
Gabriel opined there was no evidence Tony’s May 21 injuries had been caused by a violent shaking. Rather, he postulated Tony had suffered a seizure, aspirated his stomach contents into his lungs, stopped breathing and suffered cardiac arrest. Gabriel testified the May CAT scans showed an older subdural hematoma and two relatively fresh subdural hematomas. In his opinion, the fresh hematomas were rebleeds from the April 10 injury. Gabriel concluded Tony’s death had not been caused by another person.
This opinion was based on Gabriel’s findings the April 10 incident involved a probable skull fracture, soft tissue swelling and a prolonged seizure within 48 hours, and that Tony was fussy before suffering a second seizure on May 21.
Regarding Gabriel’s conclusion that Tony’s April 10 injuries had been caused by an impact trauma, and not just from having been shaken, the following colloquy occurred:
“Q Now, would your opinion change if you had known that the defendant said that the baby fell on the left side of his face, the front left side of his face? Would that change your opinion?
“A It would not be compatible with my analysis.
“Q And if . . . the defendant said that the baby fell off of a bed, that would be compatible with your analysis, would it?
“A It would be because the bed is at least two feet high and if the child fell on the back of its head, it would be compatible with my analysis.
“Q Only if the child fell on the back of his head, right?
“A That’s correct.”
3. Rebuttal evidence.
On April 11, Crystal and her mother were at Jiye’s apartment. When Jiye showed Crystal how Kim had thrown the child swing and shaken Tony, Crystal said, “Mom, if my husband finds out about this, then there’s going to be big trouble. It will be a shame on the family.” After they left, Jiye emailed her sister in Korea. That night, Crystal phoned and inquired why Jiye had asked her sister to call Crystal. Although Jiye denied having done so, Crystal said, “How could you do something like that? I didn’t see you as that kind of a person. It’s such a disappointment.”
Detective Gosser testified she had arranged a meeting to interview Crystal. However, when she called to verify the appointment time, Crystal said she did not want to meet and that she did not want to reschedule.
Dr. Jackson testified that, contrary to Dr. Gabriel’s assertion, bone windows had been done during Tony’s April 13 CAT scan. Jackson then proceeded to point them out. She also demonstrated the “windowing” technique, which involved “adjusting the gray level” so a doctor “can see different parts of the bone better.” Using this windowing technique, Jackson testified she was able to determine with a great deal of certainty that there had been no soft tissue injury to the back of Tony’s skull on April 13.
As she demonstrated “windowing,” Jackson testified: “What I’m doing right now is called windowing. And as I go faster, you can see that it’s making the bone very bright, so at this point you really would not be able to see the bone structures that great because they are too white. [¶] And as you window the other direction, the bones become more defined and you can see the structures, like the sutures. You can see the eyes. [¶] So everyone has a little bit different level that they like to look at it at and also depending on whether you’re looking at this part of the brain or the top of the skull, you may change the window level a little bit.”
Dr. Jackson testified she is Board certified in radiology, neuroradiology and pediatric radiology. She also testified the organization that had certified Dr. Gabriel, the American Society of Neuro imaging, is not affiliated with the American Board of Radiology. To belong to Gabriel’s organization, one does not have to be a radiologist, supervised by a radiologist, or even hold a medical license.
Dr. Ribe was asked about his initial autopsy finding of a “healed diastatic depression of the occipital bone suggestive of a possible chronic depressed diastatic fracture.” Ribe testified that, because he had not been sure what he was looking at, he made a note to do a microscopic study. When he later completed that study, he concluded there was “no evidence of a healing injury or fracture.” The statement in his follow-up autopsy report, “There is minimal bone, newborn, formation within the defect,” meant the depression he had seen on gross examination was just the normal new bone formation in one of the sutures in Tony’s skull.
Based on the fact two neuroradiologists from Children’s Hospital and Dr. Boge, the medical examiner’s radiologist, found no evidence of a skull fracture, and that his own microscopic study found no evidence of a skull fracture, Ribe was confident Tony did not have a skull fracture. Based on all the hospital records and his autopsy, Ribe concluded there was no evidence whatsoever that Tony had suffered a rebleed of the April subdural hematoma.
4. Surrebutal evidence.
Crystal testified she did not remember receiving a phone call from Jiye’s sister.
CONTENTIONS
1. Evidence of Kim’s police statements should not have been admitted at trial.
2. There was insufficient evidence to sustain Kim’s convictions.
3. Kim was improperly convicted of mayhem.
DISCUSSION
1. Kim’s police statements were properly admitted.
Kim contends his police statements should not have been admitted into evidence at trial. He argues the statement he gave at Children’s Hospital should have been barred because he had not been given a Miranda warning, and that the statement he gave at the Parker Center should have been barred because his Miranda waiver had not been knowing and voluntary. These claims are meritless.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
a. Proceedings below.
At an evidentiary hearing, Detective Pursel testified he and Detective Gosser spoke to Kim for an hour in an interview room that was “attached to” the Children’s Hospital Pediatric I.C.U. This interview room had no connection to the Los Angeles Police Department. Pursel and Gosser were not in uniform. Pursel told Kim he was not under arrest, that he was free to leave, and that he did not have to speak to the detectives. Pursel did not read Kim his Miranda rights. Kim agreed to the interview, which was conducted in English and tape recorded. Kim was not arrested at the conclusion of the interview; he left the interview room and continued to wander around the hospital.
Kim was arrested some time later, and he spent a night in custody at the Parker Center before speaking to Pursel again. Because Kim had told Pursel he wanted to take a polygraph test, Pursel read Kim the Miranda warnings from a card. To insure Kim understood his rights, Pursel had Kim explain them in his own words. When the polygraph examiner appeared, however, Kim changed his mind and said he did not want to take the test. Pursel then questioned Kim for a while until Kim invoked his right to remain silent, at which point Pursel terminated the interview. Pursel testified he interviewed Kim without an interpreter because he knew Kim had been in the United States for 18 years, and because Kim had spoken English during their interview at Children’s Hospital.
The trial court ruled no Miranda warning had been required at the hospital interview because it had not been a custodial interrogation. Regarding the Parker Center interview, the court ruled all of Kim’s statements could be admitted, except those referring to the polygraph exam, because Detective Pursel reasonably concluded Kim did not need an English interpreter.
b. Kim was not in custody at Children’s Hospital.
A Miranda warning is only required at a custodial interrogation. “An interrogation is custodial when ‘a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ [Citation.] Whether a person is in custody is an objective test; the pertinent inquiry is whether there was ‘ “ ‘a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ ” ’ [Citation.] [¶] Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial court’s determination that a defendant did not undergo custodial interrogation, an appellate court must ‘apply a deferential substantial evidence standard’ [citation] to the trial court’s factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, ‘a reasonable person in [the] defendant’s position would have felt free to end the questioning and leave’ [Citation.]” (People v. Leonard (2007) 40 Cal.4th 1370, 1400.) “ ‘[A] noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a “coercive environment.” ’ ” (California v. Beheler (1983) 463 U.S. 1121, 1124 [77 L.Ed.2d 1275.) “[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.” (Id. at p. 1125.)
Kim argues he was in custody during the interview at Children’s Hospital because: (1) Detective Pursel considered him a suspect; (2) the door to the interview room was closed during the interview, which lasted over an hour; and, (3) the detectives were not in uniform.
The last factor cuts against Kim’s claim, not in favor of it. (See People v. Singer (1990) 226 Cal.App.3d 23, 47 [that officers were not in uniform was factor showing defendant had not been arrested, but willingly went to police station]; United States v. Courtney (5th Cir. 2006) 463 F.3d 333, 337 [that federal agents were not in uniform was factor indicating interview was not custodial interrogation].)
The Attorney General argues that, although the detectives considered Kim a suspect, there was no evidence their suspicions had been conveyed to him. (See Stansbury v. California (1994) 511 U.S. 318, 325 [128 L.Ed.2d 293], italics added [“an 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.”].) In this situation, however, it probably would have been obvious to Kim that, as one of Tony’s two parents, he was under suspicion.
The other relevant factors, however, cut in favor of the trial court’s finding there was no custodial interrogation. The interview site was neutral: a room at Children’s Hospital. The interview only lasted about an hour, hardly an oppressive amount of time. Locking the interview room door might have been significant; just closing the door was not. (Cf. People v. Leonard, supra, 40 Cal.4th at p. 1401 [that interrogation room door had not been locked was factor showing defendant had not been in custody at sheriff’s station]; People v. Rippberger (1991) 231 Cal.App.3d 1667, 1690 [accord: “no evidence that the doors were locked or that appellants thought that they were locked”].) Most importantly, the evidence showed Kim had been very clearly informed he was not under arrest and that he was free to leave. Indeed, the evidence showed that when the interview ended, Kim walked away and continued to roam around the hospital. In this situation, even an interview at a police situation would not have constituted a custodial interrogation.
The trial court did not err by ruling this evidence was admissible because the Children’s Hospital interview had not been a custodial interrogation.
c. Kim’s Miranda waiver at the police station was voluntary.
Kim claims his Miranda waiver at the Parker Center was not knowing, intelligent and voluntary because he did not understand the interview would have to immediately cease if he did not want to be interviewed without having an attorney present. Kim complains Detective Pursel’s explanation of the right to counsel was “generally confusing,” and that Pursel should have known Kim would have trouble comprehending the consequences of waiving his right to counsel because his native language was Korean. Kim argues Pursel was further put on notice of the need for an interpreter because Kim asked him at various times to slow down or clarify certain words, and because when Pursel allowed him to make a phone call Kim spoke to his sister in Korean. Kim also notes he was provided with an interpreter throughout his trial.
Kim’s principal complaint is that when Pursel told him “he had a right to an attorney, but that an attorney was not going to be present at the interview,” the detective “failed to clearly explain that if appellant made it known that he wanted an attorney present during the interview, the interview would effectively cease.” We do not agree with Kim’s reading of the trial record. Pursel testified he read the Miranda card to Kim and then had Kim repeat his understanding of the Miranda rights. Then the following colloquy occurred:
“Q Did you explain to him regarding whether or not if he wanted an attorney, you would provide one for him right then and there?
“A Yes. I explained that during that interview that we were doing there wouldn’t be an attorney and because there wouldn’t be, it was his right not to talk. But if he wanted to talk, even without an attorney, if he understood that.
“Q So you told him if he spoke to you, it was going to be without an attorney there?
“A Yes.
“Q Okay. Did you tell him – and besides that, he didn’t have to speak to you?
“A That’s correct.
“Q Why did you tell him that you wouldn’t have an attorney there?
“A It was an in-custody interview at the police station and he didn’t have representation and I wasn’t going to get one for him.
“Q So if he wanted an attorney, what were you going to do?
“A If he wanted an attorney, [¶] . . . [¶] If – not just for him, but for any suspect, if they want to speak to an attorney, the interview is terminated until they can get – have an attorney present.”
This testimony demonstrates Pursel informed Kim that, because there was no practical way to arrange for an attorney to be present at this interview, it would only take place if Kim agreed to be questioned without counsel present. When defense counsel tried to suggest otherwise, Pursel testified he had communicated to Kim as best he could that, if Kim wanted counsel at the interview, then the interview would have to take place some other time:
“Q . . . When you advised Mr. Kim that he had a right to an attorney, at that time you told him that an attorney would not be present; is that correct?
“A What the exact words were, I can’t say, but the idea was during that interview there would not be an attorney present so if he wanted to talk to me and do the polygraph . . ., if he wanted an attorney, we wouldn’t talk.
“Q You didn’t tell him that, though; right?
“A That was the idea conveyed, yes.”
“Q You didn’t explain to Mr. Kim that if he chose to have an attorney present, you would no longer interview him; is that correct?
“A I don’t know if I explained it to him that way. I read the rights to him and he read them back to me that he understood, that he could have an attorney, yes.
“Q But you did not explain to him that if he wanted an attorney for that interview that that interview would effectively cease; is that correct?
“A I believe that’s what I tried to explain to him. I didn’t explain it just that way. I think my words were something to the effect, you have the right to an attorney but practically speaking, for this interview, there won’t be one here, if you want to still talk to me.”
Because Kim did not testify at the evidentiary hearing, there was no contradictory evidence showing he did not understand his right to counsel, or that Pursel’s explanation of that right was so confusing a reasonable person would have misunderstood. Moreover, there was subsequent trial evidence showing that when hospital personnel said they wanted to interview Jiye alone, Kim objected that he had to be there to translate for her.
We agree with the Attorney General that the evidence shows Kim’s Miranda waiver was voluntary. Because Pursel had interviewed him the day before without an interpreter, he was well aware of Kim’s English skills: “[T]hrough our conversations I knew that he was a Korean speaker and that he had been in the United States for 18 years and did speak English.” “I probably could have got one [a Korean interpreter] . . . but I didn’t feel it was necessary because I had already spoken to Mr. Kim the previous day in detail in English.” Before the interview began, Pursel read the Miranda warnings and had Kim explain those rights in his own words to make sure he understood. The evidence shows that when Kim did not understand an English word during the interview, Pursel explained it to him. Kim demonstrated he understood his rights by exercising them when he terminated the interview at the time of his choosing.
“Q During the course of your interview were there points in time where Mr. Kim conveyed to you that he didn’t understand what you were trying to ask him? [¶] A I don’t think so. We talked about sometimes if I talk too fast and I specifically told him, ‘Well, you understand if I slow down; is that correct?’ And he said, ‘Oh, yeah, as long as you go slow.’ [¶] Q During the course of the interview at Parker Center didn’t he tell you that at [times] there were certain words that he didn’t understand and made you repeat them in a different way? [¶] A That’s correct.”
Kim also claims the admission of his Parker Center statements violated Missouri v. Seibert (2004) 542 U.S. 600, 604 [159 L.Ed.2d 643], which condemned “a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of Miranda . . . the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time.” But here, after Kim was arrested, he was Mirandized before he was questioned.
2. There was sufficient evidence to sustain Kim’s convictions.
Kim contends there was insufficient evidence to sustain any of his convictions.
This claim is meritless.
a. Legal principles.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence – that is, evidence that is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
b. Prosecution witnesses were credible.
Kim contends the inculpatory evidence provided by Jiye, Dr. Imagawa and Dr. Panigrahy must be discounted because they were not credible witnesses. This claim is meritless.
Although a reviewing court “ ‘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.]’ ” (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) Although a verdict can be reversed if it is based on evidence that is inherently improbable, testimony that merely discloses unusual circumstances does not constitute inherently improbable evidence. (People v. Barnes (1986) 42 Cal.3d 284, 306.) “ ‘ “To warrant the rejection of the statements given by a witness who has been believed by the [jury], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. . . .” ’ ” (Ibid.)
Kim argues Jiye gave too many inconsistent stories to be credible, and that it was not until she herself had been charged with child abuse that she told authorities Kim had shaken Tony. Kim argues Imagawa was not credible because she worked for Children’s Hospital, which was open to negligence claims arising out of its treatment of Tony on April 13, and because Imagawa herself had been negligent with regard to Tony’s April 13 treatment. Similarly, Kim argues Panigrahy was not credible because he, too, was an employee of Children’s Hospital.
These arguments are more appropriately made to a jury, just before it retires to deliberate, than to an appellate court. This kind of credibility argument cannot demonstrate that prosecution witnesses gave testimony that was either physically impossible or apparently false.
We would add the following. Although Jiye gave inconsistent versions of what happened to Tony on April 10, there was ample evidence explaining how this happened. Jiye had only recently moved to the United States from Korea. She did not speak English and she apparently did not know anyone in the Los Angeles area except for Kim and his relatives. Kim had been abusing her emotionally. There was independent evidence she believed Kim’s threat that if she told the truth the authorities would take Tony away from her. For instance, Andrea Boyard, the Children’s Hospital social worker, testified that before the police arrived at the hospital on May 21 Jiye told her that, when they took Tony to the hospital in April, Jiye had been instructed not to say anything about Kim’s shaking Tony.
At Jiye’s change of plea hearing, the prosecutor said: “[I]t is the People’s belief that Miss Kim failed to disclose to medical personnel the source of her child’s injury because she was misled by her husband into believing that the child would be taken from her forever and not given back to her.”
There is no need to discount the testimony of these prosecution witnesses.
c. There was sufficient evidence to support the convictions.
Kim contends that, even if these witnesses were credible, there was still insufficient evidence to support the convictions. This claim is meritless.
Kim argues that, with regard to the injuries Tony sustained on May 21, he should not have been convicted of child abuse, mayhem, assault on a child causing death or murder because there was insufficient evidence he had inflicted any harm on Tony that day. Moreover, he argues there was evidence showing any injury Tony suffered on May 21 “was the manifestation of a pre-existing condition,” i.e., the accidental injury Tony sustained on April 10. But Dr. Ribe testified Tony’s death was a homicide resulting from abusive head trauma. Ribe testified the devastating injuries Tony sustained on May 21 could not have been caused by the injury he sustained on April 10. Drs. Imagawa and Panigrahy also testified Tony’s May 21 injuries could not have been caused by a rebleed from the April 10 injury. Ribe testified the May 21 injury was so devastating the resulting symptoms would have been apparent almost immediately. Imagawa testified to the same effect. This evidence, especially in conjunction with Jiye’s testimony that Tony was fine before Kim took him for a walk, Kim’s odd behavior when he returned from the walk, and Kim’s admission to police that on another occasion he had shaken Tony because the baby’s crying disturbed him, was sufficient to prove Tony’s May 21 injury had not been accidental.
Kim’s argument, that he should not have been convicted of child abuse with regard to the April 10 incident, depends on Dr. Gabriel’s conclusion an impact injury to the back of Tony’s head had caused a skull fracture. However, three radiologists – Drs. Panigrahy, Jackson and Boger – found no evidence of a skull fracture. Gabriel was not a radiologist, and he missed the fact the Children’s Hospital C.T. scans showed bone windows, by all accounts the best method for finding such a fracture. In addition, the evidence showed Gabriel misread the results of Ribe’s microscopic analysis of Tony’s skull sample, which had confirmed the absence of a fracture.
Perhaps even more important, Gabriel acknowledged his theory of an accidental April 10 injury depended on Tony’s having fallen onto the back of his head. Although Jiye told hospital personnel this is what happened, the evidence showed she had been lying and that she had actually seen Kim shake Tony. Kim himself told police Tony had fallen face forward, a story entirely incompatible with Gabriel’s exculpatory theory. Thus, Gabriel’s theory lacked an evidentiary basis and was irrelevant to the question of how Tony had been injured.
There was sufficient evidence to sustain Kim’s convictions.
3. Kim committed mayhem.
Kim contends that, whatever he may have done to Tony on May 21, it did not constitute mayhem. This claim is meritless.
Section 203 provides: “Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.” The trial court rejected Kim’s pretrial claim, that Tony’s injuries did not fall within this definition, because Tony’s brain had been rendered useless. Kim now reiterates the claim, arguing the brain is not a “member” of the body within the meaning of section 203 and that, even assuming it is, section 203 also requires the injury to have “affect[ed] the person’s normal appearance.” We disagree with these arguments.
In finding that the female breast is a bodily member as defined by section 203, People v. Page (1980) 104 Cal.App.3d 569, 577, explained: “The term ‘member’ is variously defined as ‘A part or organ of the animal body, especially a limb’ (Funk & Wagnalls Standard College Dict. (1974)); as a ‘general term applied to any integral part or vital organ of an organized animal body, or, more widely, to any integral or distinguishable constituent part of a whole which is considered as organic . . . ’ (The Random House Dict. of the English Language (1966)); and as ‘a bodily part or organ . . . specif: a part (as a limb) that projects from the main mass of the body’ (Webster’s Third New Internat. Dict. (1965)).” Citing Page’s analysis, People v. Newble (1981) 120 Cal.App.3d 444, 451, concluded “the head is a ‘member’ of the body within the meaning of section 203.” If the head falls within the definition of section 203, then so does the brain, which is certainly a vital organ.
For his alternative argument that section 203 requires the injury to have affected the victim’s normal appearance, Kim relies on the following definition from Newble: “Although it is apparent section 203 contains verbal vestiges of English Common law and the Coventry Act, ‘the modern rationale of the crime may be said to be the preservation of the natural completeness and normal appearance of the human face and body, and not, as originally, the preservation of the sovereign’s right to the effective military assistance of his subjects.’ [Citation.]” (People v. Newble, supra, 120 Cal.App.3d at p. 451.) But the injury in Newble had been only a disfigurement: “a three-inch facial laceration . . . likely to leave a permanent scar . . . .” (Id. at p. 447.) Besides causing disfigurement, section 203 also applies to a defendant who “deprives a human being of a member of his body, or disables . . . or renders it useless.” Moreover, we disagree with Kim’s suggestion that an injury not visible to others is insufficient. (See, e.g., People v. Dennis (1985) 169 Cal.App.3d 1135, 1138 [“Mayhem is committed when the inflicted injury not only completely destroys the victim’s eyesight [citation], but also when it causes impairment less than total blindness. [¶] . . . [¶] Although the victim’s eye was not ‘rendered entirely useless,’ the injuries were such that the victim could not use her eye for the ‘ordinary and usual purposes of life.’ The corrective glasses helped alleviate the lack of focus in her left eye, but the eye itself remained permanently damaged.”].)
Kim was properly convicted of mayhem.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.