Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. KA081942-01, Mike Camacho, Judge
Marcia R. Clark, 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, Daniel C. Chang, Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Noel Rivas appeals his conviction, by jury, of child abuse with the infliction of great bodily injury on a child under the age of five years. (Pen. Code, §§ 273a, subd. (a), 12022.7, subd (b), (d).) The trial court sentenced appellant to a term of 12 years in state prison. Appellant made statements on audio and video recordings in which he admitted to shaking his 29-day-old daughter, K. At trial, appellant testified that his statements were false, induced by the officers' promise to help him get his children back and to get a lighter sentence. Appellant contends the trial court erred when it instructed the jury in terms of CALCRIM No. 358 that it should consider evidence of his oral statements with caution. He contends the instruction does not apply to exculpatory statements. We conclude that the erroneous instruction was harmless and affirm the judgment.
All statutory references are to the Penal Code unless otherwise stated.
Facts
K. was born prematurely in November 2006. She spent the first seven days of her life in the hospital and was released to her parents, appellant and Josefina M., on December 5. In the early evening of December 27, when K. was just 29 days old, Josephina left the house with her brother to do some errands. When she left the house, appellant was sitting on a bed playing video games and K. was strapped into a bouncer chair that was sitting next to him on the bed. The box spring was covered in plastic, so the mattress would shift whenever a person sat on it or stood up. The bed was about two or three feet off the ground.
About ten minutes after she left the house, appellant called Josephina and told her to come home because the baby was "not responding." Appellant told Josephina that he got up to use the bathroom and then heard a noise. When he got back into the room, appellant saw that the bouncer was upside down on the floor.
The family rushed K. to a hospital. Josephina repeated to the doctors appellant's story about what had happened to K. By that time, K.'s eyes were closed and she was not responsive. Further examination revealed that K. had bleeding inside her head and swelling of her brain, but no corresponding skull fracture. The emergency room doctor, radiologist and pediatric critical care specialist who treated K. concluded that her injuries were not consistent with an accidental fall. They were, however, consistent with shaken baby syndrome. As a result, hospital staff reported K.'s injuries to the Department of Child and Family Services which, in turn, reported the suspected child abuse to the Baldwin Park Police Department.
K. spent five or six hours in the emergency room at Queen of the Valley Hospital before being transferred to Miller Children's Hospital. After spending about one year in the hospital, K. was transferred to Circlebrook Care Facility, which is affiliated with Loma Linda University. She is blind, in a persistent vegetative state and is unable to communicate, feed herself, engage in purposeful movement, or respond to physical, verbal, visual, painful or noxious stimuli. Her prognosis is very poor.
Detectives John Hendricks and Rene Sapien interviewed both parents separately. During his tape-recorded interview, a distraught appellant initially claimed that K. was injured in an accidental fall. Eventually, however, appellant admitted that K. did not fall off the bed. She was sitting in her bouncer chair, sucking on a pacifier. Appellant explained that he could not stand the sound she made when she sucked on the pacifier, so he shook K. to stop her from making noise.
Appellant agreed to go back to his house with the detectives, to reenact the incident. A third police officer, Det. Montgomery, made a video recording of the reenactment. On the video, appellant explains that he was watching television when K. started crying. He gave her a pacifier, but she was still making noise. So, appellant unbuckled the 29-day old K. from her bouncer seat, "and I grabbed her and I sat down and I looked at her and she looked at me and I said, "Shut the fuck up." Appellant shook K. hard enough to make her beanie cap fly off her head. After that, "She stopped crying. She stopped doing everything."
At trial, appellant testified that he did not shake K. He told the detectives he had because they would not believe his first statement about the accidental fall, which was the truth. Appellant was afraid the detectives would arrest Josephina and take away her other child, Ruby. The police officers coached him on everything he did in the videotaped reenactment. On the ride from the hospital back to his house, the police officers told appellant that if he cooperated and did what they told him to do, they would help him get his children back and get him a lighter sentence. There is no audio or video recording of statements made in the detectives' car on the ride back to appellant's house.
Expert Witness Testimony
All of K.'s treating physicians testified that her injuries were consistent with shaken baby syndrome and not with an accidental fall. In addition, Dr. Karen Imagawa, a pediatrician at Children's Hospital Los Angeles who specializes in child abuse, testified as an expert witness. After reviewing K.'s medical records, Dr. Imagawa testified that K.'s "injuries were consistent with a shaking mechanism. It's basically consistent with abusive head trauma, inflicted head trauma. That could be a combination of a shaking injury as well as an impact injury. It could have just been from shaking. It could be shaking, impact, and suffocation. There is a variety of etiologies that could cause this but, based on the information that I was provided and in the medical records here, it was not consistent with... a short, less than two-foot fall from a bed but was consistent with inflicted trauma."
The defense expert witness disagreed with these conclusions. Dr. Chris Van Ee, a biomedical engineer rather than a medical doctor, opined that K.'s injuries were not the result of shaking because, shaking sufficient to produce the severe injuries K. suffered would also be accompanied by bruising, rib fractures, and injuries to the chest and upper neck, none of which were present in K. Dr. Van Ee is skeptical concerning the type of shaken baby syndrome. He opined that biomedical studies do not support the existence of the syndrome and that most people could not generate enough force by shaking to cause a baby's brain to move inside the skull.
Discussion
The trial court instructed the jury in terms of CALCRIM No. 358: "You have heard evidence that the defendant made oral or written statements before the trial. You must decide whether or not the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements. [¶] You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded."
This portion of the instruction has been revised in the 2009-2010 edition to read, "Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded." (CALCRIM 358.)
Appellant's sole contention on appeal is that the trial court erred when it read the final sentence of this instruction because that sentence applies only to incriminating statements. Because the unrecorded statements at issue here were exculpatory, appellant contends the instruction should not have been given. He contends the error was prejudicial because it encouraged the jury to reject testimony that was critical to his defense.
It has long been established that the trial court has a sua sponte duty to instruct the jury that it should view with caution evidence of an admission -- an inculpatory statement -- made by the defendant. (People v. Beagle (1972) 6 Cal.3d 441, 455.) The purpose of this cautionary instruction "is to assist the jury in determining if the statement was in fact made." (Id. at p. 456.) Thus, it has also long been clear that the cautionary instruction, "should not be given if the oral admission was tape-recorded and the tape recording was played for the jury." (People v. Slaughter (2002) 27 Cal.4th 1187, 1200; People v. Mayfield (1997) 14 Cal.4th 668, 776.) Nor should it be given if the only statements in evidence are exculpatory, rather than inculpatory. (People v. Slaughter, supra, 27 Cal.4th at pp. 1199-1200.)
CALJIC 2.71, a prior version of the instruction at issue here, made this distinction plain because it instructed jurors to view a defendant's admissions with caution, and it defined an admission as a statement " 'which tends to prove guilt when considered with the rest of the evidence....' " (Id., quoting CALJIC No. 2.71.) Thus the court in Slaughter concluded it was harmless error to instruct the jury in terms of CALJIC 2.71 where there was evidence that the defendant made both inculpatory and exculpatory statements. " 'Juries understand that this instruction by its terms applies only to statements tending to prove guilt, not to exculpatory ones. To the extent a statement is exculpatory it is not an admission to be viewed with caution. [Citation.]' (People v. Senior (1992) 3 Cal.App.4th 765, 777.)" (People v. Slaughter, supra, 27 Cal.4th at p. 1200.)
In People v. Williams (2008) 43 Cal.4th 584, the defendant made both incriminating and exculpatory unrecorded statements. The court rejected his contention that "the jury would have understood [CALJIC 2.71] as a basis for discounting the exculpatory elements of his statements...." (Id. at p. 639.) Relying on Slaughter the court concluded, "we are confident the jury understood the instruction did not apply to the exculpatory aspects of defendant's statements. Defendant could not have been prejudiced by the erroneous giving of the instruction to view his admissions with caution." (Id. at p. 640.)
The current version of CALCRIM No. 358 follows Williams and Slaughter by instructing the jury to, "Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded." The bench notes further explain that the instruction is "not required when the defendant's incriminating statements are written or tape-recorded. [Citations.] If the jury heard both inculpatory and exculpatory, or only inculpatory, statements attributed to the defendant, give the [instruction]. If the jury heard only exculpatory statements by the defendant, do not give the [instruction]." (Bench Notes to CALCRIM No. 358 (2009-2010 ed.), pp. 132-133; Bench Notes to CALCRIM No. 358 (2007-2008 ed.), pp. 135-136.)
At the time of appellant's trial, however, the pattern instruction was not limited to admissions or incriminating statements. Instead, it broadly stated that jurors "must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded." (CALCRIM No. 358 (2007-2008 ed.).) As a result, jurors could have applied the instruction to discount exculpatory portions of appellant's statements. The trial court erred in giving the instruction without also explaining that its application is limited to unrecorded admissions by the defendant.
We nevertheless conclude that the error was harmless. First, we note that the challenged instruction had a very limited application in this case because few of appellant's exculpatory statements were unrecorded. It would not apply to statements appellant made to the treating doctors because those statements were recorded by the doctors and repeated by appellant in his audio-recorded interview. Similarly, the instruction would not apply to the "directions" and "coaching" appellant claimed to have received from the detectives because those alleged statements were made by the detectives, not by appellant. At most then, the jury would have applied the instruction to the explanation appellant initially gave M., that K. accidentally fell off the bed. There is no reasonable likelihood that he would have achieved a more favorable result had the jury not been instructed to view that single statement with caution. (People v. Flood (1998) 18 Cal.4th 470, 487-490; People v. Wims (1995) 10 Cal.4th 293, 314.)
Second, we conclude that the error is harmless because the evidence of appellant's guilt was overwhelming. The doctors who treated K. and the physician expert witness all agreed that K.'s injuries were not consistent with an accidental fall from a height of two feet, but were consistent with trauma caused by violent shaking. Appellant was alone with K. when that trauma occurred. Even if he had never spoken to the detectives, there would be substantial evidence of his guilt. As it is, however, appellant gave an audio-recorded statement in which he initially denied, but later admitted to shaking K. He gave this statement before the detectives allegedly promised to help him and before they allegedly "coached" him on the reenactment. Jurors would have viewed appellant's explanation with skepticism even without the challenged instruction, because his statement was internally inconsistent and was contradicted by both K.'s physical condition and the medical expert testimony. Given the overwhelming evidence that K.'s injuries were caused by non-accidental trauma and that only appellant could have inflicted that trauma, there is no reasonable probability that he would have obtained a more favorable result had the instructional error not occurred. (People v. Wims (1995) 10 Cal.4th 293, 314.)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.