Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF014104 Robert W. Armstrong, Judge. (Retired Judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
A jury convicted defendant and appellant Aaron Leroy Montgomery of assaulting a child over whom he had care and custody, by means of force likely to produce great bodily harm, resulting in death (Pen. Code, § 273a, subd. (b), count 1), and causing a child under his care and custody to be injured and inflicted unjustifiable pain and suffering (§ 273a, subd. (a), count 2). The jury also found true the allegation that defendant personally inflicted great bodily injury on a child under the age of five, in the commission of count 1 (§§ 12022.7, subd. (d) and 1192.7, subd. (c)(8)). The trial court sentenced defendant to 25 years to life in state prison on count 1. The sentences on count 2 and the enhancement were stayed pursuant to section 654.
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant contends the admission of his confession statements during a police interview violated his constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We affirm.
FACTUAL BACKGROUND
Defendant and his wife, Emilia, lived with their two boys, A.M. and J.M. (the baby), and defendant’s parents. The baby was born six weeks prematurely in September 2005, and had to stay in the hospital for a week before coming home. On October 26, 2005, the baby was acting normally all day. That evening, defendant’s parents left the house, so only defendant, Emilia, and the two boys were home. After dinner, defendant took the boys upstairs and put them to bed. The baby was crying, so Emilia stayed downstairs to make him a bottle. She took the bottle upstairs, where defendant was holding the baby, who was still crying. Emilia told defendant that she had to use the restroom, so he could either feed the baby or let him cry until she returned. Emilia heard the baby crying while she was in the bathroom. The baby then stopped crying, so she assumed defendant had started to feed him. When she came out of the bathroom, defendant had the baby by the door and said something was wrong with him. The baby had a blank stare on his face and was trying to breathe. Emilia told defendant to call 911, so he gave the baby to her so he could make the call. Defendant called 911 and handed the telephone to Emilia. The baby was transported to the hospital, where he later died.
The police subsequently interviewed defendant, and portions of this interview were admitted into evidence. In addition, a videotape of the interview was played for the jury. (See post.)
At trial, Dr. Steven Trenkle, the pathologist who conducted the autopsy on the baby, testified. He testified that the baby had some rib fractures, which could have been caused by a grown man squeezing the baby’s chest hard. The baby had subdural hemorrhages on both sides of his brain and the top of his brain. He also had a subarachnoid hemorrhage at the bottom of the brain caused by his brain moving inside the skull and rubbing across the base of the skull. In addition, the baby had a hemorrhage around the spinal cord and around some of the nerves that come out of the spinal cord. Dr. Trenkle explained the baby’s injuries were caused by the baby’s head moving and then suddenly stopping. The injuries were consistent with someone shaking the child and then roughly putting him on the bed. Dr. Trenkle opined the baby died of traumatic brain injury, and that there were no natural causes that would have caused his death. He also opined the injuries were caused close in time to the 911 call.
ANALYSIS
The Court Properly Admitted Defendant’s Confession
Defendant argues that the trial court erred in ruling his confession at the police interview admissible, since he was not advised of his Miranda rights until after he initially confessed. He was subsequently given his Miranda rights and then repeated his confession. He contends the reiteration of his confession was a product of the first illegally obtained confession. Thus, he contends both confessions were inadmissible. We disagree.
A. Background
Before trial, defendant moved the court to suppress various statements he had made during his police interview. The police detectives testified as follows: Detectives Robert Spivacke and Edward Rose went to defendant’s home on October 29, 2005, to see if defendant and Emilia would be willing to accompany them to the police station for follow-up interviews about the incident. The detectives were dressed in plain clothes, not their police uniforms. Detective Spivacke told them they were not being accused of anything. Defendant and his wife willingly agreed to go, so Detective Spivacke drove them to the police station. They were placed in the back seat of the car; they were not handcuffed.
Detective Rose sat down with defendant at the police station to interview him. Detective Spivacke apparently came in and out of the interview periodically. At the outset, Detective Rose told defendant that he appreciated defendant’s cooperation, that defendant was not under arrest, and that he was free to go at any time. Detective Rose asked defendant if he and his wife had any plans for that night. When defendant said he was supposed to meet his friend, Detective Rose said he would try to make the interview as quick as possible so he could keep his plans. Detective Rose started the interview with background questions about defendant’s marriage, living arrangements, children, and his children’s medical histories. Defendant told the police that the baby was born prematurely and weighed only about four pounds at birth. The baby had breathing problems, for which he had to take medication, and an irregular heartbeat. Detective Rose asked how defendant disciplined his other son, A.M. He asked if defendant ever “lost it” with A.M. and shook him to “knock some sense into him.” Defendant said he wanted to, but he knew that A.M. was a child, and he did not want to hurt him. Detective Rose then asked defendant questions about the night of the incident. Defendant said he had the baby while Emilia went to the restroom. Defendant said he gently put the baby on the bed and then noticed the baby was having trouble breathing. He then gave the baby to Emilia, who told him to call 911.
At that point in the interview, Detective Spivacke told defendant that he and Detective Rose were going to leave the room to call the coroner and find out the results of the autopsy. Detective Spivacke first confirmed with defendant that nobody dropped the baby or dropped anything on him. Defendant said no. When the detectives returned to the interview room, Detective Spivacke told defendant the pathologist said the baby had broken ribs and a bleeding brain, and that those were not naturally occurring injuries. Detective Spivacke said it was one of two people who caused the baby’s injuries, but it was not that defendant or his wife purposely inflicted the injuries. Defendant asked, “Then how can my baby get that?” The detective said the only way the injuries could have occurred was if defendant or his wife got upset with the baby and shook him. Detective Spivacke reminded defendant that both he and Emilia said she was in the bathroom. Based on what defendant was telling him, Detective Spivacke said the baby got the injuries while defendant was with him. Defendant admitted that he got upset with the baby and grabbed him.
Then, Detective Spivacke gave defendant his Miranda rights, and defendant said he understood them. Detective Spivacke then said, “Okay. I want you to go through that again for me, please, okay? So the baby’s in there crying and you get upset.” Defendant said, “I get upset. [¶]... [¶] And shook him like (inaudible).” Defendant demonstrated what he did. He also said he shook the baby two weeks prior. Detective Spivacke then told defendant he was going to let him talk to his wife. Detective Spivacke said, “I want you to apologize to her for what happened. Okay. Because she needs to hear your apology.” The detective brought Emilia into the room and said defendant had something to tell her. Defendant told her he shook the baby twice. Detective Spivacke left the room, and defendant kept saying to his wife that he did not want to spend the rest of his life in prison, and that everybody was going to hate him now. He begged her not to leave him.
After watching the videotape of the interview and listening to the testimonies, the court concluded that defendant voluntarily consented to going to the police station for the interview. There was no coercion, show of force, show of authority, handcuffs, or intimidation by the police. The court noted that defendant appeared to be relatively calm during the interview, and that he responded to the questions in a thoughtful, rational manner. The court observed that defendant was told he was free to leave, and it opined that defendant’s statements were made voluntarily. The court further stated that, although defendant did not explicitly waive his Miranda rights, his waiver could be implied from the circumstances. Defendant responded to Detective Spivacke’s recitation of the Miranda rights by saying he understood his rights. He continued to talk without being urged or coerced.
The court then stated that, for the majority of the interview, defendant was not in custody. However, there was a point in time before being Mirandized that defendant became the primary suspect. The court stated that when the detective gave defendant a teddy bear to demonstrate how he shook the baby, defendant was the primary suspect. At that point in time, the court found that any reasonable person would not have felt free to leave. The court ruled that all of defendant’s statements after page 94, line 21 of the transcript through page 96, line 27, right before Detective Spivacke read him his Miranda rights, were inadmissible. The court also excluded lines one through 10 on page 97 of the transcript. The court denied the motion to suppress, other than the exceptions noted.
The record on appeal does not include pages 94 and 95 of the interview transcript, and it shows that lines 1 through 38 on page 96 were redacted.
B. The Court Properly Admitted and Excluded Portions of the Interview
“After being taken into custody by police or otherwise deprived of his or her freedom of action in any significant manner, a person must be given Miranda warnings apprising the person of his or her right to remain silent, that any statement the person makes may be used against the person and that the person has the right to counsel, retained or appointed. [Citation.]” (In re Kenneth S. (2005) 133 Cal.App.4th 54, 63.) This rule is only applicable to custodial interrogation. (Id. at p. 64.)
Here, defendant first argues that his pre-Miranda confession should have been excluded. He concedes that his interview at the police station did not begin as a custodial interrogation, since he voluntarily submitted himself to questioning about the circumstances of the baby’s death. However, as the court found, at some point the interview turned into a custodial interrogation. Defendant argues that it changed right after the detectives took a break and then re-entered the room. At that point, they explained the baby’s injuries and asked defendant to tell them what happened. Detective Spivacke said, “Okay. Talk to me about it. Tell me what happened.” Defendant cites page 93 of the interview transcript, claiming it reflects that he confessed, prior to being Mirandized, that he shook the baby because he was upset. Defendant claims that such confession should not have been admitted. However, defendant misstates the record. The only statement he made at that point was “I was in the room. He was crying and I just kind of got upset and grabbed him.” The court excluded virtually everything after that statement until defendant was given his Miranda rights. Thus, the record reflects there was no actual confession that defendant shook the baby, uttered prior to being Mirandized.
Defendant further argues that his post-Miranda confession should have been excluded because it was “wholly a product of the first illegally obtained confession.” As explained above, the first “confession” that defendant claims was illegally obtained was not an actual confession to shaking the baby. In any event, defendant’s post-Miranda statements were made knowingly and voluntarily. Defendant was read his Miranda rights, and acknowledged that he understood each one of them. He now asserts that Detective Spivacke “never even asked [him] if he wanted to waive the rights he’d just explained to him.” However, a waiver of Miranda rights can be implied when, after having been admonished of those rights, a suspect responds affirmatively that he understands them and thereafter makes statements to the police. (People v. Whitson (1998) 17 Cal.4th 229, 247-248; People v. Medina (1995) 11 Cal.4th 694, 752.) After implicitly waiving his Miranda rights, defendant went on to confess to Detective Spivacke that he shook the baby. As noted by the court, which viewed the videotape of the interview, there was no coercion, show of force, show of authority, handcuffs, or intimidation by the police. Moreover, defendant appeared to be relatively calm during the interview and responded to the questions in a thoughtful, rational manner.
Therefore, we conclude that the court properly admitted defendant’s post-Miranda confession.
C. Any Error in Admitting Defendant’s Confession Was Harmless Beyond a Reasonable Doubt
Even if we were to assume that the confession was obtained in violation of Miranda, we conclude that, under the circumstances of the present case, its admission was harmless beyond a reasonable doubt. (People v. Cunningham (2001) 25 Cal.4th 926, 994.)
The jury may have considered defendant’s statements as evidence that he shook the baby, but the other evidence of defendant’s guilt was overwhelming. The undisputed evidence showed that defendant was with the baby at the time the baby stopped breathing and his injuries occurred. Defendant admitted that his wife was in the bathroom, and that he had the baby. Emilia testified that she heard the baby crying while she was in the bathroom. The baby then stopped crying, and when she came out of the bathroom, defendant had the baby by the door and said something was wrong with him. The baby had a blank stare on his face and was trying to breathe. Defendant immediately called 911. Dr. Trenkle testified that the baby had rib fractures that could have been caused by a grown man squeezing the baby’s chest hard. The baby also had subdural hemorrhages on both sides of his brain and the top of his brain, as well as a subarachnoid hemorrhage at the bottom of his brain. In addition, he had a hemorrhage around the spinal cord. Dr. Trenkle explained that the baby’s injuries were caused by his head moving and then suddenly stopping. The injuries were consistent with shaking a child and then roughly putting him on the bed. Dr. Trenkle opined the baby died of traumatic brain injury, and that there were no natural causes that would have caused his death. He also opined the injuries were caused closely in time to the 911 call.
We further note the only issue defense counsel raised during his closing argument was that defendant “was [not] aware of facts that would lead a reasonable person to realize that his act, by its nature, would directly and probably result in great bodily injury to the child.” Defense counsel did not dispute that defendant shook the baby, but only argued that he did not know the danger of what he was doing. To the contrary, the evidence showed that defendant knew the baby was born prematurely, weighed only four pounds at birth, was fragile, and had medical issues such as breathing problems and an irregular heartbeat. Moreover, during the police interview, Detective Rose asked if defendant ever “lost it” with his other son, A.M., and shook him to “knock some sense into him.” Defendant said he wanted to, but he knew that A.M. was a child, and he did not want to hurt him. Thus, the evidence showed that defendant was aware that shaking a child could hurt him.
In light of all the evidence that defendant was the only person who could have caused the baby’s injuries, we conclude that the admission of his confession was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER, J., MILLER, J.