Opinion
NOT TO BE PUBLISHED
Superior Court County No. BA300629 of Los Angeles Craig E. Veals, Judge
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Chanel M. Perodin appeals a judgment after her conviction of voluntary manslaughter (Pen. Code, § 192, subd. (a)), assault on a child causing death (§ 273ab), and child abuse (§ 273a, subd. (a)). We conclude, among other things, that 1) statements Perodin made to police without being advised of her Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) were admissible because she was not under arrest or in custody when she made her statements, and 2) substantial evidence supports the judgment. We affirm.
All statutory references are to the Penal Code.
FACTS
On June 6, 2002, Perodin's four-month-old baby girl arrived at the Cedars-Sinai Hospital's emergency department. She was "in full cardiac and respiratory arrest" and was almost "brain dead."
The hospital's nursing staff called the police. They told Police Officer Maurice Brunel that the doctors had determined that Perodin's child was a victim of "possible child abuse" and that Perodin had given conflicting statements.
Police Detective Yvonne Ortiz interviewed Perodin on June 11, 2002. Perodin told her that the child may have been injured because she fell off a bed. But later Perodin gave her another explanation for the injuries. Ortiz contacted Perodin again to determine whether she would take a polygraph examination at the police station. Perodin agreed.
After she entered the polygraph examination room, Perodin told examiner Jason Brunson that she had come there voluntarily because she wanted "to get this matter cleared up." Before giving a polygraph examination, Brunson asked her if she had ever shaken her child. Perodin responded, "Once, I did." She said, "I just picked her up and bounced her on my leg" for one minute to wake her up. "She was sitting on my leg." Brunson asked if she had "forcibly" shaken the child. Perodin said, "I didn't." After Brunson asked her about additional details, Perodin said, "I don't want to say nothing else." Brunson terminated the interview. No polygraph test was administered. Perodin was never hooked up to the polygraph machine. Brunson told her that Detective Ortiz would be coming in to speak with her.
Perodin went with Detective Ortiz to another room. After a brief interview, Perodin wrote a statement about the events of June 6, 2002. She said she went to the kitchen to prepare the baby's bottles while the baby was sleeping. The baby woke up and began to cry. The infant continued to cry and would not stop. Perodin began to shake her for a few minutes. Perodin noticed that "something was wrong," the baby stopped breathing and she called 911. In the last sentence of the written statement, Perodin said, "I shook the [baby] very hard." After completing this statement, Perodin was arrested.
Perodin's child remained in a coma for three years until she died. On September 27, 2005, Dr. James Ribe, a county coroner, performed an autopsy. He determined that Perodin's child died as a result of "abusive head trauma." He said it took "extreme force" to cause the injuries suffered by the baby.
At trial, Dr. Gary Goulin, the director of the Cedars-Sinai pediatric care unit, testified that Perodin's child had suffered a "severe brain injury." She had "subdural bleeding" on the top of the brain and retinal hemorrhages. Her injuries were consistent with "abused baby syndrome" or "abused head trauma." She experienced "severe shaking." Her injuries were not consistent with the type of injuries suffered by children who experience falls. They could not have been caused by a mother bouncing a child on her knee or by shaking the baby to wake her up. These injuries to her brain occurred within an hour of her arrival at the hospital. At birth Perodin's child was premature, "born after gestation of 26 weeks."
In the defense case, Dr. Ronald Gabriel, a pediatric neurologist, testified that the prosecution's medical experts were wrong. He said, "There is no biomechanical or physiological evidence that shaking acceleration alone can produce either retinal hemorrhages or subdural hemorrhages." On cross-examination, he said it was possible that violent shaking could cause subdural bleeding and retinal hemorrhages.
In rebuttal, Dr. Ribe testified that his autopsy report concluded that Perodin's child "was shaken, slammed or thrown or some combination of the above."
Perodin's Motion to Exclude Her Statements to Police
Perodin moved the trial court to exclude the statements she made to the police. She claimed she was in custody when she made the statements and she should have received a Miranda warning. At the hearing Detective Ortiz testified that Perodin voluntarily went to the police station. Perodin was not restrained or handcuffed, and Ortiz told her that she was not under arrest and could leave at any time.
The trial court denied the motion. It found that Perodin was not in custody when she made the statements, she was free to leave, and consequently a Miranda warning was not required.
DISCUSSION
I. Admissibility of the Statements to Police
Perodin contends that the trial court erred by not excluding her statement to police that she "shook the [baby] very hard." She claims her statement is inadmissible because she was not given a Miranda advisement. We disagree.
"[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of the procedural safeguards effective to secure the privilege against self-incrimination." (Miranda v. Arizona, supra, 394 U.S. at p. 444.)
Here the police did not give a Miranda warning before Perodin made her statement. But "'[i]n applying Miranda ... one normally begins by asking whether custodial interrogation has taken place.'" (People v. Ochoa (1998) 19 Cal.4th 353, 401.) "'Absent "custodial interrogation," Miranda simply does not come into play.'" (Ibid.) "The test for whether an individual is in custody is 'objective...: "[was] there a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest."'" (Ibid.)
In reviewing a trial court's denial of a defendant's motion to exclude an admission, "we apply a deferential substantial evidence standard" to the trial court's findings on credibility and historical facts. (People v. Ochoa, supra, 19 Cal.4th at p. 402.) "We must accept factual inferences in favor of the trial court's ruling." (People v.Zamudio (2008) 43 Cal.4th 327, 342.) But "we independently decide whether 'a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.'" (Ochoa, at p. 402.)
Here Perodin was not under arrest at the time she made her statement, and she was not in custody. Detective Ortiz testified that Perodin agreed to take a polygraph examination. She and her partner drove Perodin to the station. The police did not physically restrain her and Perodin was not handcuffed.
A reasonable person in Perodin's place would believe that he or she could terminate the interview and go home. Ortiz testified that she told Perodin that she was not under arrest and that she was "free to leave atany time." (Italics added.) Perodin terminated her discussion with the polygraph examiner. But Ortiz testified that after that point Perodin never stated to her "that she wanted to go home or did not want to talk anymore." She said Perodin went with her to an interview room for a "brief conversation where [Perodin] voluntarily gave [Ortiz] a written statement." (Italics added.)
At the hearing on Perodin's motion to exclude her statements to police, there was no testimony that the police ever used force, coercion, or threats against her. There was no evidence that they prevented her from leaving before she wrote her statement. Nor was there any restraint on her "freedom of movement." (People v. Ochoa, supra, 19 Cal.4th at p. 401.) Perodin told Brunson that she came in voluntarily for a polygraph examination because she wanted "to get this matter cleared up." When Perodin told Bruson that she did not want to answer further questions, he concluded the interview. Ortiz's testimony about the voluntary nature of Perodin's written statement was uncontradicted. The "totality of the circumstances indicates" that Perodin's consent to the interview and her statements were voluntary and not made in a custodial environment. (People v. Zamudio, supra, 43 Cal.4th at p. 346.) Perodin has not shown that the trial court erred by admitting her statements to police.
II. Substantial Evidence
Perodin claims that there is insufficient evidence to support the judgment and consequently her convictions for voluntary manslaughter, assault on a child causing death and child abuse must be reversed. We disagree.
In deciding the sufficiency of the evidence, we draw all reasonable inferences from the record to support the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We do not weigh the evidence or decide the credibility of the witnesses. (Ibid.) We initially presume that the record contains sufficient evidence to support each finding of fact unless the appellant demonstrates otherwise. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283.)
"A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of voluntary manslaughter." (People v. Garcia (2008) 162 Cal.App.4th 18, 27.) The state of mind for this offense may include either an intent to kill or a conscious disregard for life. (Ibid.)
A defendant commits the offense of assault on a child causing death where he or she "having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death...." (§ 273ab.)
A parent commits felony child abuse under section 273a, subdivision (a) where he or she subjects the child to "circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering...." (People v. Wilson (2006) 138 Cal.App.4th 1197, 1201.)
Perodin claims that 1) her voluntary manslaughter conviction must be reversed because there was no evidence of an intent to kill or a conscious disregard for life, and 2) the convictions for assault on a child causing death and child abuse cannot stand because there was no evidence that she used force likely to cause great bodily injury or death.
But the record contains evidence from which a reasonable trier of fact could infer that Perodin had a conscious disregard for life and used force likely to cause death. Perodin confessed that she shook the child "very hard." At trial, Dr. Keith Kolber, who was the neonatologist at the birth of Perodin's child, testified that the baby was premature. He said that all mothers of premature infants were routinely instructed not to shake these babies. The jury could reasonably infer that Perodin knew that it was particularly dangerous to shake her child.
Perodin claims that shaking the child is not evidence of any criminal intent. But as our Supreme Court has noted, a reasonable person would understand that violently shaking a premature infant is a circumstance likely to result in great bodily harm or death. (People v. Sargent (1999) 19 Cal.4th 1206, 1222.) Moreover, Dr. Ribe's testimony undermines any claim of benign parental intent. He testified that the baby's death was the result of "abusive head trauma." The injuries the child suffered involved the use of "extreme force." In describing the amount of force used by Perodin, he said, "It takes the greatest force that an adult is capable of inflicting upon that baby." Perodin initially claimed that she only bounced the baby when the infant was sitting on her knee. But Dr. Ribe said there was no possibility that that activity could have caused the injuries. The jury could reasonably find that Perodin's conflicting explanations for the injuries showed her consciousness of guilt and that her expert was impeached on cross-examination. Dr. Goulin's testimony also refuted the claim that the injuries could have been caused by a fall or any normal parental conduct. "The doctors' testimony that the application of great force was required to cause [the child's] injury and that the injury was not accidently caused allowed the jury to deduce that the injury was intentionally caused." (People v. Mills (1991) 1 Cal.App.4th 898, 921.)
Moreover, the duration of the trauma the child experienced was extensive. Perodin told the polygraph examiner that she shook the child for one minute. Later in her written statement, she said she shook the baby for a few minutes. There was also evidence from which jurors could reasonably infer that the child's injuries were caused by abuse that went beyond shaking. Dr. Ribe testified that the child's injuries were consistent with the infant having been "shaken, slammed or thrown or some combination of the above." The evidence is sufficient.
We have reviewed Perodin's remaining contentions and conclude that she has not shown reversible error.
The judgment is affirmed.
We concur: YEGAN, J., PERREN, J.