Opinion
G030535.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. BRUCE MORTON, Defendant and Appellant.
Jeffrey H. Leo for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Janelle M. Boustany and Marilyn George, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Bruce Morton was convicted of assaulting a child with force likely to produce great bodily injury resulting in death (Pen. Code, § 273ab) and second degree murder (Pen. Code, § 187, subd. (a)) following a jury trial. The trial court sentenced him to 25 years to life for the assault and 15 years to life for the murder, but stayed the latter sentence.
Defendant contends his pretrial statements should have been suppressed because the investigating officers failed to cease questioning him when he asserted his right to counsel. He further argues that evidence indicating the child may have been sexually abused should have been excluded and that there was insufficient evidence to support his convictions. In addition, he contends his sentence under Penal Code section 273ab constitutes cruel and unusual punishment. We disagree and affirm.
FACTS
The victim, defendants five-year-old stepdaughter Katya, died as the result of subdural and subarachnoid hemorrhaging with brain swelling due to blunt force trauma to her head. Katya received the head injury while at home in defendants care; the only other persons present at the time of the incident were defendants 10-month-old daughter Valerie and his 11-year-old nephew Timmy. Katya was comatose when the paramedics arrived on the scene and essentially brain dead upon arrival at the hospital. Her body literally was covered in bruises, most of which appeared to be very recently inflicted.
The emergency room physician, Dr. Ginther, preliminarily diagnosed Katya as having "sustained severe blunt head trauma which had compromised her neurologic[al] and life functions"; he determined that her injuries were very recently inflicted. Dr. Jalili, who also examined Katya and reviewed the C.T. scans of her head, later testified that the head injuries were caused by "sudden and very forceful trauma to the brain" and that after receiving this injury the child would not have been able to walk, talk, or eat. He likened the head injury to something one might see from a car accident and testified that the child could not have caused her own injury. The neurosurgeon, Dr. Kim, made a similar conclusion.
The doctor who performed the autopsy testified as to the size, location, and possible age of each of the numerous bruises and other injuries covering Katyas body. The mid-forehead area contained both new and old injuries, while the bruises on the back of the head were mostly recent, within 2 to 24 hours prior to her arrival at the hospital. There were bruises on each side of the childs jaw, her left cheek, and the right side of her chin. There was a laceration of the connecting tag between the gum line and upper lip. The right side of the childs chest contained two bruises, one close to the nipple. The three bruises to Katyas upper right arm and two on her upper left arm were mostly acute, meaning very recent. There also were several bruises to her right elbow and forearm. A linear bruise ran across her pelvic area from one hip to the other, and the autopsy revealed a hemorrhage in the mesenteric soft tissue membrane which holds the bowels in place inside the abdomen. Bruises extended from the back to the inner thighs, and on the buttocks there were "two separate bruises . . . each measur[ing] four by five inch[es] . . ., and then another bruise between the two cheek[s] on the left side . . . ."
In addition to the bruises, the emergency room physician had noted that the childs "hymen was patent, which basically means that it was open, which is an unusual finding in a youngster." The hospitals social worker had observed "inflammation, swelling and redness in the vaginal area." However, she failed to note this observation in her report. Dr. Gorchynski later examined the child in an effort to determine if she had been physically and/or sexually assaulted; the doctors findings were consistent with both physical and sexual abuse. Although her report did not expressly state that she suspected Katya had been sexually abused, the doctor testified that some of her findings were consistent with sexual abuse. The autopsy, however, revealed no evidence of trauma to the external genitalia, and the hymen appeared intact.
Subsequent testing of the childs clothing revealed several stains containing a mixture of DNA belonging to Katya, defendant, and a close female relative of Katyas, most likely her mother. Sperm cells were found on the inside of Katyas underwear as well as on her outer clothing. The DNA expert witness testified that, in her opinion, the presence of another females DNA mixed with defendants sperm indicated the source of the stain was probably drainage from the other female which was then somehow transferred to the childs clothing, possibly by sitting on the stain or being wiped with a towel. Defendant testified that he and Sandra did not engage in sexual intercourse the morning of the incident or the previous night.
Defendants nephew Timmy was present when Katya received her fatal injuries, but he did not actually see how the injuries were inflicted. Timmy got up around 10:00 a.m. and went out into the living room where he saw Valerie sleeping in her playpen. Timmy did not see Katya, who remained in the bedroom she shared with her mother, defendant, and the baby. Sandra had left for work early that morning. Defendant later explained that Katya had been placed on restriction three days earlier, which meant she had to stay on her bed all day.
For breakfast defendant made egg sandwiches for Timmy and himself and a peanut butter and jelly sandwich for Katya, which he took to her on a tray with a napkin. When defendant later went into the bedroom to check on Katya, Timmy heard defendant ask her if she had been wiping her hands on the bed; Katya said no. Timmy then heard defendant say, "`If I walked in and I saw you, then I am seeing things." When Katya did not respond, defendant asked her again if she had wiped her hands on the bed. Timmy told the police he heard defendant spank Katya at least twice that morning and that Katya cried and screamed; he also heard defendant tell Katya to put soap in her mouth after defendant had called Sandra at work to ask what he should do.
At some point while defendant was in the bedroom with Katya, Timmy heard a loud thump. A few minutes later defendant called for Timmy to come into the bedroom; defendant was holding Katya, patting her back, and saying "wake up." Defendant asked Timmy to get some water and to grab the portable phone. Defendant, who had recently completed a certificate course in emergency medical training, placed Katya on the living room floor and tried to wake her up by placing an iced water bottle on her face. The phone rang and defendant answered it; he then told Timmy to run next door to deliver a message to the neighbor from her son. Timmy complied; he did not tell the neighbor about Katya. When Timmy returned, defendant told him to hold Katya and try to revive her while he took a shower. Five minutes later, defendant came out of the shower and opened the windows. Defendant called Sandra and told her to come home from work; then he called 9-1-1.
The paramedics found the child lying unconscious on the floor with her hands curled up in a position which indicated a head injury and with shallow breathing. Defendant told the fire captain that Katya "had thrown a temper tantrum and had gone unconscious" after being disciplined for smearing her sandwich on the bed. Sergeant Caddell of the Santa Ana Police Department also questioned defendant at the scene. Defendant explained that after he caught Katya wiping her hands on the bed he called Sandra and she told him to put soap in the childs mouth. He tried to do that, but Katya began screaming, so he left her alone in the room. After a couple of minutes the screaming stopped and he found Katya unconscious on the floor.
During his subsequent interview at the police station and at trial, defendant admitted he may have caused many of Katyas bruises by spanking and grabbing her, but he denied spanking her on the day of the incident or inflicting the fatal blow to her head. He claimed the thump Timmy heard was when he hit the wall with his fist. He also denied molesting the child. He attributed the redness and swelling in her vaginal area to her straddling the bed railing and falling off two weeks earlier. At trial defendant speculated that the linear bruise across the childs hip area below her belly button had been caused by an amusement park ride a week earlier. Defendant testified that he did not call Sandra to tell her to come home and did not send Timmy to deliver the message to the neighbor until after he called 9-1-1. He also denied taking a shower after Katya had been injured. A forensic specialist who went to the scene less than two hours after the paramedics were called inspected the shower area and found it was still wet and a towel hanging in the bathroom was still damp.
DISCUSSION
Motion to Suppress Defendants Pretrial Statements
Before trial, defendant moved to suppress the statements he made at the police station, contending that the police continued to question him after he requested an attorney. The trial court denied the motion, finding defendant failed to make a "clear, unambiguous assertion of his rights for the record." Defendant contends the court erred. We disagree.
Defendant had been waiting at the police station for nearly six hours before he was formally interviewed. At the beginning of the interview, the investigators indicated they wanted to read defendant his rights. Investigator Martinez explained, "[T]he reason I want to read you your rights is [be]cause youve been here for quite a while." Defendant asked, "Do I need an attorney present?" The investigator responded, "Thats gonna be up to you." Defendant then said, "Well I probably should then." He also said he wanted to speak with his wife. Investigator Rodriguez indicated he needed to get something first, and after a pause during which it was presumed the investigators left the room, the interview recommenced with defendant making a few unsolicited comments. The investigators then advised defendant of his rights, including the "right to an attorney before and during any questioning"; defendant was also advised that if he could "not afford an attorney, one [would] be appointed for [him] before questioning, if [he] wish[ed]." Defendant said he understood these rights. Investigator Martinez then asked defendant, "Can we talk about what happened today?" Defendant said, "Yes thats what Im here for." He made no further mention of any desire to speak with an attorney.
"[W]e apply federal standards in reviewing a defendants claim that his or her statements were elicited in violation of [Miranda v. Arizona (1966) 384 U.S. 436]. [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 129.) Under federal constitutional law, "a suspect must unambiguously request counsel. [Citation.]" (Id. at p. 130.) "If the suspects statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." (Davis v. United States (1994) 512 U.S. 452, 461-462 [114 S.Ct. 2350, 129 L.Ed.2d 362].) Consequently, "[u]nless the suspect actually requests an attorney, questioning may continue." (Id. at p. 462 [suspects statement "`Maybe I should talk to a lawyer" was not unequivocal].)
Recently in People v. Neal (2003) 31 Cal.4th 63, the California Supreme Court again condemned the practice of continuing to question a suspect who has invoked his or her right to counsel. There, the officer failed to stop the interview even though the defendant invoked his right to counsel 7 to 10 times during the first interview. The officer admitted he persisted with the interview for its potential impeachment value even though he knew the tactic was improper. The court held the defendants confession during a subsequent interview was inadmissible. (Id. at pp. 80-81.) But the present case simply is not analogous to Neal. Here, defendants question as to whether he needed an attorney and his statement that he "probably should then" cannot be characterized as unequivocal request for counsel. It was not a clear invocation when first made, and defendant followed it with unsolicited statements—not the conduct to be expected of someone invoking his Miranda rights. Under the circumstances, the police acted properly in advising defendant of his rights, at which point he clearly waived them. Therefore the trial court properly denied defendants motion to suppress his pretrial statements.
Admission of Evidence of Sexual Abuse
Defendant argues the trial court erred in admitting evidence which indicated he may have sexually abused Katya because it was insubstantial and overwhelmingly prejudicial. We are not persuaded.
Before trial, defendant moved to exclude evidence of the DNA testing, the social workers observations of Katyas vaginal area, and certain findings by Dr. Gorchynski which were consistent with chronic sexual abuse. At a pretrial hearing, the social worker testified that, in addition to the extensive bruising, she saw swelling and redness in the childs vaginal area. While the social worker failed to include these findings in her written report, she did report both suspected physical and sexual abuse when she contacted child protective services. She testified that her failure to include her observations in the report "was an oversight."
Dr. Gorchynski testified that even though her report did not state "this person was sexually abused," some of her findings were consistent with such a conclusion. The doctor further testified that the finding "`mildly thickened around the anus" was consistent with chronic sexual rectal sodomy; other findings of an elliptical hymen and "mildly thickened mucosa in the vaginal areas" were "consistent with sexual penetration or injury . . . of some sort. . . . And . . . bruises in . . . the interior part of the vaginal area [was] consistent with involuntary trauma to the vaginal area." Dr. Gorchynski disagreed with a statement by another doctor, who had assisted her during the examination, who reported no evidence of vaginal penetration. According to Dr. Gorchynski, "There [was] no evidence of acute penetration, but there [was] evidence of chronic [penetration]," meaning "multiple times." Dr. Gorchynski explained that she "should have clarified chronic versus acute" in the report. Although there were no visible tears, Dr. Gorchynski testified that her findings indicated a possibility that Katya had been sexually abused or penetrated four to five hours before arriving at the hospital.
The trial court concluded the probative value of the sexual abuse evidence outweighed the prejudicial effect as it tended to show a motive for defendants conduct. The trial court determined presentation of the DNA evidence would not result in any undue consumption of time. It further concluded that any discrepancies between the various reports and the testimony of the social worker and Dr. Gorchynski was an issue of credibility for the jury to decide.
We review the trial courts ruling under Evidence Code section 352 for abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.) Evidence relating to every aspect of Katyas physical condition was highly relevant to refute defendants claim that her fatal injuries were self-inflicted and to show a possible motive for the assault. While the DNA evidence and testimony from the witnesses about their observations of the condition of the childs vaginal and anal areas did not conclusively establish that she had been sexually assaulted, such evidence tended to explain defendants overall conduct toward the child. Therefore the trial court did not err in admitting the challenged evidence.
Sufficiency of the Evidence
Defendant argues there is insufficient evidence to support his convictions because "[t]he evidence . . . adduced at trial failed to establish an assault by defendant on Katya was committed by means of force that to a reasonable person would be likely to produce great bodily injury." His claim is meritless.
"In assessing a sufficiency-of-evidence argument on appeal, we review the entire record in the light most favorable to the prevailing party to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Wader (1993) 5 Cal.4th 610, 640.) We apply the same standard to convictions based largely on circumstantial evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745.) And it is not within our province to reweigh the evidence or redetermine issues of credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
A conviction for child-homicide under Penal Code section 273ab requires evidence showing that a defendant "`"willfully and unlawfully, while having care or custody of a child under eight years old, assault[ed] the child by means of force that to a reasonable person would be likely to produce great bodily injury and . . . which result[ed] in the childs death." [Citation.]" (People v. Norman (2003) 109 Cal.App.4th 221, 226-227.) A conviction for second degree murder based on implied malice requires that the defendant must have "deliberately performed an act, the natural consequences of which are dangerous to life, knowing that the conduct endangers the life of another, but acting with conscious disregard for that risk of life." (People v. Autry (1995) 37 Cal.App.4th 351, 358.) "`[I]t is not necessary to establish that the defendant intended that his act would result in the death of a human being. [Citation.]" (People v. Swain (1996) 12 Cal.4th 593, 603.)
The doctors who examined Katya opined that her fatal head injury was nonaccidental and could not have been self-inflicted. Notably, Dr. Jalili testified that a child with such an injury would not have been able to walk, talk, or eat. He further estimated that the injury occurred within two to three hours of the childs presentation to the emergency room. Dr. Ginther similarly determined that the head injury had occurred within a "fairly short duration" of time. Dr. Erlich examined the childs brain post-mortem and testified that the head injury resulting in her death appeared recent, within four hours of being found by the paramedics "and probably most likely within an hour." Timmys statement about the thump he heard emanate from the bedroom while defendant was alone with Katya, coupled with evidence of the childs physical condition and the nonaccidental nature of her head injury, provided ample evidence to support defendants convictions.
Constitutionality of 25-Years-to-Life Sentence Under Penal Code Section 273ab
Defendant contends his sentence of 25 years to life constitutes cruel and unusual punishment because an unintentional killing under Penal Code section 273ab is punished as or more severely than an intentional homicide. He contends that statute is "essentially a strict liability offense because the person assaulting the child does not need to intend to cause death or any injuries, or even subjectively appreciate the risk of force used." We disagree.
Under California law, a sentence will be deemed cruel or unusual only when "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.) Three factors guide our determination of this issue: (1) The offense and the defendants background; (2) how the punishment compares to that for more serious offenses in California; and (3) how the offense would be punished in other jurisdictions. (Id. at pp. 425-428.)
The same challenge to Penal Code section 273ab was made and rejected in People v. Norman, supra, 109 Cal.App.4th 221. There, in regard to the nature of the offense, the court stated: "A life sentence for a vicious murder of a small child cannot be said to be disproportionate whether it was premeditated or not. Despite defendants repeated requests to view section 273ab in the abstract, he ignores the fact that this terrible child homicide was a second degree murder. He cannot argue he did not possess malice because the jury found he did so. Whether a minimal touching and minimal mens rea may be all that is required for conviction under the statute, this jury found much more to be true." (Id. at p. 230.)
The same is true here. While defendant had no prior criminal history, he nevertheless repeatedly and systematically abused a vulnerable and helpless child under the age of eight and ultimately caused her death. Thus, contrary to defendants contention, the crime he was convicted of committing simply is not analogous to involuntary manslaughter. As for disproportionality in regard to other crimes in this state or elsewhere, even second degree murder carries a lifetime maximum sentence, and defendant has not demonstrated that Penal Code section 273ab "is grossly out of step with similar statutes in the rest of the country." (People v. Norman, supra, 109 Cal.App.4th at p. 232.) And where a life sentence with the possibility of parole for a nonviolent crime does not violate the federal Constitution, the sentence imposed here for the murder of a child is undeniably constitutional. (Id. at p. 230.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J. and BEDSWORTH, J.