Opinion
F076234
08-17-2018
THE PEOPLE, Plaintiff and Respondent, v. BELINDA LEYVA, Defendant and Appellant.
Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PCF345010)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Antonio A. Reyes, Judge. Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Franson, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Appointed counsel for defendant Belinda Leyva asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising her of her right to file a supplemental brief within 30 days of the date of filing of the opening brief. She responded, stating (1) she was unlawfully detained and her Miranda rights were never read to her; (2) the court failed to assign her an attorney for her first appearance; (3) her bail was excessive because the complaint contained many mistakes; (4) the photographs admitted were not date stamped; (5) her son and daughter lied about the allegations against her; (6) the court did not admit evidence of self-defense; (7) when the jury found her not guilty, the prosecutor added charges and asked leading questions; and (8) the court refused to grant a mistrial when the jury was deadlocked, and the court instead further instructed the jury. We address defendant's contentions, but our review of the entire record reveals no arguable issues on appeal. Accordingly, we affirm.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
FACTS
Defendant lived with her five children. On October 11, 2016, she and her 16-year-old son, R.S., were arguing in the kitchen. They argued a lot about chores and caring for the younger children, especially the boy with autism. Defendant grabbed a broom and tried to hit R.S. with it, but he grabbed it from her. Then she grabbed a knife with an approximately three-inch-long blade. She was just two or three feet from R.S. when she thrust her arm forward and contacted his chest with the knife. R.S. backed up and knocked the knife out of her hand onto the floor. He was afraid. He grabbed defendant and they fell to the floor.
Defendant's 23-year-old daughter, L.L., ran in and saw defendant holding R.S. down. L.L. grabbed defendant by the arm and pushed them apart. Defendant released R.S. L.L. told R.S. to walk away and go to his room, and he complied. The wound on his chest bled for a little while. L.L. did not see a knife.
The next morning, R.S. showed the wound to L.L. and she took photographs of it. L.L. thought defendant degraded R.S. when they argued because she called him names suggesting he was worthless.
On December 20, 2016, R.S. went to his aunt's house. He told her about the October 11, 2016 incident and she called the sheriff's department. When Deputy Hector Hernandez arrived, R.S. told him that defendant assaulted him with a knife on October 11, 2016. Hernandez took photographs of R.S.'s healed wound. R.S. stayed at his aunt's house and did not see defendant until trial.
After speaking to R.S., Hernandez called L.L. and spoke to her. She sent him the photographs she had taken from her phone. Next, Hernandez went to defendant's house. He went inside her house and spoke with her. He could not find a knife matching R.S.'s description or any bloody clothing.
Defense Evidence
Defendant testified that seven or eight people were living with her in October 2016. She had to take care of the kids and do the laundry and other chores. Because her autistic son required constant supervision, she needed someone to watch him when she was doing chores. R.S. refused to help. Defendant and R.S. would fight because he did not want to do his homework or his chores, and he wanted to be out with friends defendant disapproved of. He would get mad, lash out, and become violent. He broke things and put holes in the walls. He had also gotten into a fight with someone when he was walking home from school in October 2016.
On October 11, 2016, defendant heard her autistic son crying in R.S.'s room. She went to investigate. R.S. got defensive and yelled, " 'Nothing happened.' " Defendant knew something had happened, and R.S. tended to lie a lot. She continued to investigate and R.S. got angry. He got very close to her and yelled at her. He was much taller than she. He put her in a headlock and she bit him until he released her. Afterward, she did not notice where R.S. went; she was trying to catch her breath. L.L. did not grab her or pull her off of R.S. Defendant never stabbed R.S. or threatened him with a knife. She never swung a broom at him and she never hit him. She tried not to get angry.
PROCEDURAL BACKGROUND
On December 22, 2016, defendant was charged with three felonies: child abuse (Pen. Code, § 273a, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and willful infliction of cruel corporal punishment upon a child (§ 273d, subd. (a); count 3). As to all counts, it was also alleged that defendant personally used a deadly and dangerous weapon against R.S. (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury on R.S. (§ 12022.7, subd. (a)). The trial court issued a criminal protective order prohibiting defendant from having contact with R.S. Defendant continued to care for her other children while she was released before trial.
All statutory references are to the Penal Code unless otherwise noted.
On February 24, 2017, an information was filed, charging defendant with the same three felonies, but alleging only that, as to count 1, defendant personally used a deadly and dangerous weapon against R.S. (§ 12022, subd. (b)(1)).
Jury trial began on June 20, 2017. On June 21, 2017, during deliberations, the jury submitted two questions to the trial court. After deliberating for about two hours and 10 minutes, the jurors asked the court if section 273d, subdivision (a) was a misdemeanor. The court answered it was a felony. Then, about 30 minutes later, the bailiff informed the court that the jurors stated they might be deadlocked. The court called the jurors back and instructed them pursuant to CALCRIM No. 3551 to continued deliberating. About an hour and 10 minutes later, the jury submitted the second question, asking if they could consider mental abuse on count 3. The court answered they could not. About 30 minutes later, the jury had reached a verdict.
On count 1, the jury found defendant not guilty of felony child abuse and found not true the allegation that she personally used a deadly and dangerous weapon against R.S. Instead, the jury convicted defendant of the lesser include offense of misdemeanor child abuse (§ 273a, subd. (b)). On count 2, the jury found defendant not guilty of felony assault with a deadly weapon, and instead convicted her of the lesser included offense of misdemeanor simple assault (§ 240). On count 3, the jury found defendant not guilty of felony willful infliction of cruel corporal punishment upon a child.
On June 30, 2017, the trial court granted defendant four years' probation and ordered her to complete child abuse classes. The court also ordered another criminal protective order.
On August 8, 2017, defendant filed a notice of appeal. The trial court granted her request for a certificate of probable cause.
DISCUSSION
I. Detention and Miranda Advisement
Defendant contends she was unlawfully detained and her Miranda rights were never read to her. We assume she is raising a claim of ineffective assistance of counsel for failure to move to suppress evidence obtained in violation of her rights under the Fourth and Fifth Amendments.
To demonstrate ineffective assistance of counsel, defendant must show that defense counsel's representation fell below an objective standard of reasonableness and that he was prejudiced as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 688; People v. Ledesma (1987) 43 Cal.3d 171, 216.) Even where counsel's performance is found to be substandard, prejudice arises only if there is a reasonable probability of a more favorable result—that is, a probability sufficient to undermine confidence in the outcome. (People v. Ledesma, at pp. 217-218.) Consequently, to prevail on either contention, defendant must show that it is reasonably probable she would have obtained a more favorable result at trial absent the alleged errors.
If a detention itself is unlawful, its fruits—that is, evidence subsequently obtained from searches, as well as any statements made by the defendant in connection with those searches—must be suppressed. (United States v. Crews (1980) 445 U.S. 463, 470; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1001.) "The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees the right to be free of unreasonable searches and seizures." (People v. Gallegos (2002) 96 Cal.App.4th 612, 622.) In this context, "police 'contacts' or 'interactions' with individuals" include consensual encounters, detentions, and arrests, with consensual encounters being the least intrusive, and arrests the most intrusive, of these contacts. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784, citing Florida v. Royer (1983) 460 U.S. 491 (plur. opn.).) Detentions are "seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police 'if there is an articulable suspicion that a person has committed or is about to commit a crime.' " (Wilson v. Superior Court, at p. 784.) The police have detained an individual " 'if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " (Michigan v. Chesternut (1988) 486 U.S. 567, 573.) Those circumstances may include "physical restraint, threat of force, or assertion of authority." (In re Tony C. (1978) 21 Cal.3d 888, 895.)
Miranda, on the other hand, dealt with "the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself." (Miranda, supra, 384 U.S. at p. 439.) Under Miranda, " 'a suspect [may] not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel.' [Citations.] After a knowing and voluntary waiver, interrogation may proceed ' "until and unless the suspect clearly requests an attorney." ' [Citation.] The prosecution bears the burden of demonstrating the validity of the defendant's waiver by a preponderance of the evidence." (People v. Dykes (2009) 46 Cal.4th 731, 751.) "[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." (Miranda, at p. 444.)
We assume in both arguments that defendant refers to evidence and statements obtained when Deputy Hernandez entered her home and spoke to her. Defendant fails, however, to identify any evidence or statements that were obtained or admitted as a result of these alleged constitutional violations. And we can find none. Deputy Hernandez testified he went to defendant's house on December 20, 2016, after speaking to R.S. and L.L. He said he went inside the house and spoke with defendant. He looked for a knife fitting the description of the knife allegedly used in the October 11, 2016 incident, and he looked for damaged or bloody clothing that might have been associated with the incident. He found neither. Hernandez was not allowed to testify regarding any statements made to him by defendant. On this record, we conclude defense counsel's failure to move to suppress evidence obtained in violation of defendant's Fourth or Fifth Amendment rights did not prejudice defendant because no such evidence was admitted at trial. We note that if defendant possesses evidence outside the appellate record supporting an ineffective assistance claim, she may raise the issue by way of a petition for writ of habeas corpus.
II. Appointed Counsel at First Appearance
Defendant asserts the trial court failed to assign her an attorney for her first appearance. According to the record, however, defendant was represented by a public defender at her first appearance, the arraignment on her complaint, on December 22, 2016.
III. Excessive Bail
Defendant claims her bail was excessive because the complaint against her contained mistakes. She fails to identify those mistakes and thus we have no basis upon which to consider this issue.
IV. Admission of Photographs
We take defendant's claim that the admitted photographs were not date stamped as a claim that the photographs were not adequately authenticated. We disagree.
Authentication of a writing, including a photograph, is required before it may be admitted into evidence. (Evid. Code, §§ 250, 1401.) "Authentication is ... statutorily defined as 'the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is' or 'the establishment of such facts by any other means provided by law' ([Evid. Code,] § 1400)." (People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).) "[T]he proof that is necessary to authenticate a photograph or video recording varies with the nature of the evidence that the photograph or video recording is being offered to prove and with the degree of possibility of error." (Id. at p. 267.) "The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered." (Ibid.) "A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted. [Citations.] This foundation may, but need not be, supplied by the person taking the photograph or by a person who witnessed the event being recorded. [Citations.] It may be supplied by other witness testimony, circumstantial evidence, content and location." (Id. at pp. 267-268.) There is no restriction on the means by which a writing or photograph may be authenticated. (Evid. Code, § 1410; People v. Valdez (2011) 201 Cal.App.4th 1429, 1435.) " 'As long as the evidence would support a finding of authenticity, the writing [or photograph] is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' " (Goldsmith, supra, at p. 267.)
We review the trial court's ruling for an abuse of discretion, and will not disturb the ruling without " 'a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (Goldsmith, supra, 59 Cal.4th at p. 266.)
In this case, the photographs were discussed during defense counsel's motions in limine, as follows:
"THE COURT: Any photographs or documents should be excluded unless they're first authenticated. [¶] What's the issue there, [defense counsel]?
"[DEFENSE COUNSEL]: There's two set of photos in this case. There's a set of photos that were reportedly taken by law enforcement of the alleged injuries in December when the alleged crime was reported. There's also a second set of photographs that it was claimed, at least at the preliminary hearing, were taken or came from the phone of witness [L.L.]
"THE COURT: [Defendant's] daughter.
"[DEFENSE COUNSEL]: Right.
"THE COURT: My understanding from the preliminary hearing transcript is that those were sent to the officer through some means of email.
"[PROSECUTOR]: Yes, Your Honor.
"THE COURT: They would have to testify to that.
"[PROSECUTOR]: I will have witnesses here to authenticate all the photos.
"THE COURT: Alright. Is there anything further regarding that?
"[DEFENSE COUNSEL]: No, that was the issue."
When R.S. testified, the prosecutor asked him about Exhibits 3 and 4, the photographs of the wound inflicted by defendant, as follows:
"Q Did your sister [L.L.] take a photo of the spot on your shoulder right there?
"A Yes.
"Q She did? But it wasn't until the following day?
"A Yes."
L.L. later testified as follows:
"Q [PROSECUTOR] Okay. Did [R.S.] show you an injury after that [October 11, 2016] argument?
"A He showed it to me the following day.
"Q The following day. I have here what's been marked as People's Exhibit[s] 3 and 4. [¶] Do you recognize those two photos?
"A Yes.
"Q What are they photos of?
"A My brother's chest and his stab wound.
"Q Did you take these—
"A Yes.
"Q —photos? And is it a fair and accurate depiction of the injury that he had?
"A Yes.
"[PROSECUTOR]: Your Honor, the People move to have People's Exhibit[s] 3 and 4 entered into evidence.
"THE COURT: Any objection, [defense counsel]?
"[DEFENSE COUNSEL]: Yes, as to foundation.
"THE COURT: Okay. I'll take that up at the next break."
At the break, the following occurred:
"[PROSECUTOR]: Your Honor, should we also discuss the photos? I believe we were going to speak about that outside the presence of the jury.
"THE COURT: You objected on foundation grounds to the photos.
"[DEFENSE COUNSEL]: I did.
"THE COURT: What's the specific foundation? What's your objection? The witness testified that she took the pictures.
"[DEFENSE COUNSEL]: She did. As I recall, at least initially, she didn't establish when the photos were taken.
"[PROSECUTOR]: She said the morning after.
"THE COURT: She said the morning after.
"[PROSECUTOR]: And, Your Honor, if it's an issue that there could be other reasons for this injury, [defense counsel's] obviously more than welcomed to say that something happened in the interim.
"THE COURT: He's speaking about—his objection is as to foundational grounds as to the exhibits, the two photographs. Do you have anything further regarding that, [defense counsel]?
"[DEFENSE COUNSEL]: No.
"THE COURT: Objection's overruled. The photos will be accepted into evidence."
The other set of photographs, Exhibits 1 and 2, were discussed during the testimony of Deputy Hernandez, who took the photographs of R.S. on December 20, 2016, as follows:
"Q [PROSECUTOR] I have here what's been marked as People's Exhibits 1 and 2. Do you recognize these photos?
"A [DEPUTY HERNANDEZ] Yes.
"Q What are they?
"A They are photos I took of what [R.S.] stated were stab wounds.
"Q You took those on the 20th of December?
"A Yes.
"Q Are these a fair and accurate depiction of the scars that you saw—
"A Yes, ma'am.
"Q —On the 20th?
"[PROSECUTOR]: Your Honor, the People move People's 1 and 2 into evidence.
"THE COURT: Any objection, [defense counsel]?
"[DEFENSE COUNSEL]: No.
"THE COURT: They will be deemed admitted.
"[PROSECUTOR]: Thank you."
Based on the testimony above, we conclude the photographs were adequately authenticated by the parties who took them. The court did not abuse its discretion in admitting the photographs.
V. False Allegations
Defendant asserts that R.S. and L.L. raised false accusations against her. The credibility of witnesses is an issue for the jury, not for the appellate court. "It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact." (People v. Tripp (2007) 151 Cal.App.4th 951, 955; People v. Young (2005) 34 Cal.4th 1149, 1181.)
VI. Evidence of Self-Defense
Defendant contends the trial court refused to admit evidence of self-defense. The record, however, belies this contention. When considering the jury instructions, the court informed both counsel that it would instruct on self-defense if any self-defense evidence was introduced. Later, defendant did testify that she had defended herself against R.S., as follows:
"Q [DEFENSE COUNSEL] How did things turn physical?
"A [DEFENDANT] We were—I was facing him and he was facing me, and he got really close and—
"Q Is he yelling at you close to your face?
"A Yeah, yeah. And I put my hand up like this because he was so close to me. I mean, he was spitting in my face. So I went like this and he got ahold of me and immediately put me in like a headlock
"Q Where were you when this is all happening?
"A In between—well, kind of in the kitchen area, but to the side. It's first—it's his room and then the kitchen and then the living room.
"Q So near the kitchen?
"A Yes.
"Q Alright. You said [R.S.] had you in some sort of headlock?
"A Yes.
"Q Were you able to get out of that headlock somehow?
"A I actually had turned my head and I bit him so he could release me.
"Q Did that work?
"A Yes.
"Q And what happened after that?
"A After that, I was trying to see straight and kind of get my breath back.
"Q Did you see your daughter [L.L.]?
"A Yeah, I had seen her, yeah, but I knew she was there because I heard her.
"Q Do you remember her grabbing your arm or something like that?
"A No.
"Q Okay. And this is a difficult question to answer, but how hard did you bite him?
"A Enough to have him release me. I wasn't trying to hurt him or anything. I was just trying to get out of that situation that we were in.
"Q Do you know whether you got him with all of your teeth or just the ones in front?
"A No. It was just the ones in front, because, like I said, I was barely able to turn my head.
"Q So are you chomping down like with molars or just—
"A No.
"Q —sort of pinching him with the front?
"A Just the front, yeah.
"Q Did you see any mark on him?
"A No.
"Q Did you have a chance to even look in the area where you bit him that day?
"A No. I actually had got a part of my inner lip, so I don't know; I'm not sure if his skin I got.
"Q You bit your own lip?
"A Yeah.
"Q Was your lip bleeding?
"A Yeah.
"Q Badly or—
"A No, not that bad. But, yeah, it was—I had to apply a little bit of pressure to it.
"Q And where did [R.S.] go, as far as you knew, after that?
"A Like I said, I really didn't pay attention, because I was just trying to get my breath back.
"Q And did you?
"A Yeah."
When the trial court read the jury instructions, it included instructions on self-defense. We see no suggestion in the record that the court refused to admit evidence of self-defense.
VII. Additional Charges and Leading Questions
Defendant claims the prosecutor added new charges when the jury "found her not guilty," and asked leading questions. We have reviewed the record and find no additional charges when the jury appeared to be deadlocked. As for leading questions by the prosecutor, defendant points to none in particular for us to consider.
VIII. Mistrial
Defendant contends the trial court erroneously refused to grant a mistrial when the jury was deadlocked, and instead further instructed the jury. We see no error.
A trial court is not required to declare a mistrial when the jurors believe they may be deadlocked. "Section 1140 allows a trial court to discharge a jury and declare a mistrial if the court determines that the proper period of time for deliberation has expired and 'there is no reasonable probability' that the jurors can agree on a verdict. The decision whether to declare a hung jury or to order further deliberations rests in the trial court's sound discretion. [Citations.] 'Although the court must take care to exercise its power without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency [citation], the court may direct further deliberations upon its reasonable conclusion that such direction would be perceived " 'as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.' " ' " (People v. Debose (2014) 59 Cal.4th 177, 209.)
The jury's own assessment of being in a deadlock is not determinative and does not remove the court's discretion to require further deliberations. (People v. Harris (2005) 37 Cal.4th 310, 364-365; People v. Sandoval (1992) 4 Cal.4th 155, 195-196; People v. Rodriguez (1986) 42 Cal.3d 730, 774-777.) Even when a jury has deliberated for a substantial amount of time and indicates it is unable to reach a verdict, a trial court still retains discretion to require further deliberation, and doing so is not necessarily coercive. (See, e.g., People v. Rodriguez, at pp. 775-776 [court did not coerce jurors by asking them to resume deliberations after 18 days, with four intermittent impasses, based on long trial and complex issues]; People v. Sandoval, at pp. 196-197 [no abuse of discretion where court ordered more deliberations following five-month trial and deliberations that lasted a little over 14 hours]; People v. Breaux (1991) 1 Cal.4th 281, 319-320 [jury informed court it had reached an impasse after four days of deliberation, indicated there was no chance of a verdict upon further deliberation; no abuse of discretion where court twice asked jury to deliberate further].)
Here, the jury submitted two questions to the trial court regarding count 3. The first answer informed the jurors that count 3 was a felony, not a misdemeanor. Not long after receiving this answer, the jurors believed they might be deadlocked. At this point, the jury had deliberated less than three hours and appeared to be struggling over count 3. It was not unreasonable for the court to conclude that the jury should resume deliberations after such a short time. The court instructed with CALCRIM No. 3551, encouraging the jurors to continue the deliberative process and ask for further clarification if needed, and "simply remind[ing] the jurors of their duty to attempt to reach an accommodation." (People v. Moore (2002) 96 Cal.App.4th 1105, 1118, 1121.) The jurors did ask for further clarification on count 3, and reached a verdict shortly thereafter.
We conclude the trial court did not abuse its discretion in instructing the jurors to continue deliberating.
DISPOSITION
The judgment is affirmed.