Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. GA066704 Teri Schwartz, Judge.
Landra E. Rosenthal, 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, Scott A. Taryle, Supervising Deputy Attorney General, Peggy Z. Huang, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
A jury found Tonya Mae Schaefer guilty of first degree murder (Pen. Code, §§ 187, subd. (a)/189) and assault on a child causing death (§ 273ab). Schaefer contends the trial court erred in refusing her request for a manslaughter instruction. We affirm.
All statutory references are to the Penal Code.
FACTS
On March 12, 2006, a railroad employee was working on an area called the "trench," where the tracks run through Alhambra. The trench is a concrete gully. He saw a dead baby lying near the tracks. The baby's body was half in and half out of a plastic bag. Another plastic bag was near the baby's head. He called the police.
Alhambra Police Officer Brandon Cardella arrived about 10 minutes after the call. There was no public access near where the baby was found. Cardella arrived by driving his car down the trench. When Cardella arrived, the baby had no pulse, it was not breathing and its umbilical cord was still attached.
There is a residential area to the south of the tracks. A chain link fence separates the residential area from the trench. The drop from the top of the concrete wall that forms the trench to the railroad tracks is about 50 feet. The wall is so steep that an adult cannot walk up its surface. It is too steep even for a person to lay on his back and scoot down. Schaefer's house was across the street from where the baby was found. The police interviewed Schaefer, but she denied any knowledge of the baby. She said she knew about the safe surrender law. She learned about the law when a prior police officer came to her house to investigate the incident.
A medical examiner conducted an autopsy on the baby the next day. The baby was born alive, premature but viable. The cause of her death was severe head injuries consistent with being tossed over a fence and bounced down a 50-foot embankment. The baby died within a few seconds.
In September 2006, Detective Kevin Lang received a tip that Schaefer was the mother of the baby. "DNA" analysis confirmed it. Lang interviewed Schaefer again in November 2006. When Lang said he knew Schaefer was the mother of the dead baby, she admitted it.
Schaefer told Lang she was at home on March 11, 2006. She did not know she was pregnant. She felt the need to use the toilet. She sat down on the toilet, pushed twice and the baby came out. The baby was breathing. Schaefer sat on a couch with the baby and thought, "What am I going to do with this baby on my hands. I can't afford it." She was also afraid because her mother did not approve of the baby's father.
Schaefer went into the laundry room and put the baby into two bags. She tied the bags together with a knot. She did not tie the bags too tightly so that the baby could breathe. The baby was moving in the bags. She took the baby across the street and dropped the baby over the fence down to the railroad tracks below.
Initially, Schaefer told Lang that when she dropped the baby over the fence, she thought the baby would die from lack of water and nutrition. When Lang asked her what she thought the 50-foot fall to the railroad tracks would do, she said she thought it would probably kill the baby. She said she knew she killed the baby. Schaefer told Lang she knew about the safe surrender laws. She said she knew the baby was going to die, but it was not her goal to kill it.
DISCUSSION
Schaefer contends the trial court erred when it refused her request to instruct on involuntary manslaughter as a lesser included offense.
Involuntary manslaughter is the unlawful killing of a human being without malice and without the intent to kill. (See People v. Cameron (1994) 30 Cal.App.4th 591, 604.) It is error to refuse a requested instruction where there is substantial evidence the jury might believe that would warrant a verdict under the instruction. (See People v. Flannel (1979) 25 Cal.3d 668, 684.) Schaefer argues an instruction must be given whenever there is any evidence of a lesser offense. But our Supreme Court has made it clear the evidence must be substantial. (Id. at pp. 684-685, fn. 12.)
Here Schaefer points to her statements that she did not know what to do with the baby, she could not afford it; that she was afraid because her mother did not approve of the baby's father; and that she did not learn about the safe surrender law until after she put the baby over the fence. She claims the evidence shows she was desperate. But Schaefer cites no authority that simply feeling desperate overcomes the malice necessary for murder.
Schaefer also points to evidence that when she tied the baby into the bags, she did not tie the bags tightly so that the baby could breathe. She told Laing it was not her goal to kill the baby.
Schaefer may not have intended to kill the baby by suffocating it in a bag. But she admitted she thought dropping the baby down a 50-foot embankment would kill it. Schaefer is not entitled to a manslaughter instruction simply because she chose one method of killing over another.
Schaefer's statement that it was not her goal to kill her baby, is not substantial evidence requiring a manslaughter instruction. It is not clear what she meant by goal. Whatever her goal was, she surely intended to kill her baby. She deliberately dropped the baby down a steep 50-foot embankment. No reasonable person could conclude she intended anything other than the baby's death.
Schaefer suggests a manslaughter instruction could be based on the theory that the baby's death occurred as a result of a violation of section 273a, child endangerment. But there is no evidence Schaefer simply endangered the child. Instead, the only reasonable conclusion any trier of fact could draw from the evidence is that she intended to kill the child and succeeded.
People v. Evers (1992) 10 Cal.App.4th 588, is on point. There, the defendant was convicted of second degree murder and child endangerment in the death of his two-year-old stepson. The child died of head injuries as a result of being shaken or slammed down. The defendant had abused the child on at least two earlier occasions. The Court of Appeal rejected the defendant's contention that the trial court should have instructed on involuntary manslaughter. The court stated the only reasonable conclusion the jury could reach was that the defendant knew and understood the probable consequences of his actions. (Id. at p. 597.) Thus there was no substantial evidence to support an involuntary manslaughter instruction. (Id. at p. 598.) In so holding, the court pointed out that an involuntary manslaughter instruction is not warranted where the defendant's self-serving statements denying the intent to kill are not deemed substantial in character. (Ibid.)
Similarly here, the only reasonable conclusion is that Schaefer must have known the consequences of dropping her baby down a steep 50-foot embankment. Her self-serving statement that it was not her goal to kill the baby is not substantial evidence requiring a manslaughter instruction.
The judgment is affirmed.
We concur: YEGAN, J., PERREN, J.