From Casetext: Smarter Legal Research

People v. Veliz

Court of Appeals of California, Fourth District, Division Two.
Nov 3, 2003
No. E031885 (Cal. Ct. App. Nov. 3, 2003)

Opinion

E031885.

11-3-2003

THE PEOPLE, Plaintiff and Respondent, v. ROBERT VELIZ, Defendant and Appellant.

Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez, Supervising Deputy Attorney General, and Garrett Beaumont, Senior Deputy Attorney General, for Plaintiff and Respondent.


INTRODUCTION

Defendant was charged with assault resulting in the death of his two-month-old son, Robert, Jr. (Pen. Code, § 273a, subd. (b).)[] A jury convicted him of the charged offense, and he was sentenced to 25 years to life in prison. Defendant appeals. We affirm, and remand the matter to the trial court to redact a portion of the probation officers report that the trial court ordered stricken.

All further statutory references are to the Penal Code unless otherwise indicated.

An autopsy showed the baby died of nonaccidental blunt force traumatic injuries, specifically, 18 fractured ribs on both sides and in the back of the rib cage. The fractures could have been caused by a squeeze or a hug with extreme force, or by stepping on the baby.

The baby was born on March 7, 2001, and died on May 9, 2001. The baby, defendant (then age 22), and the babys mother, Alejandrina Aldama (Aldama) (then age 21), lived in a one-bedroom apartment in Indio. Emergency personnel were called to the apartment shortly after 7:00 a.m. on May 9, but the baby was dead when they arrived.

SUMMARY OF CONTENTIONS AND CONCLUSIONS

Defendant first contends that the trial court erreoneously admitted statements he made to police in two interviews on August 8, 2001, about three months after the babys death. At the time of the interviews, defendant had not been formally arrested, and no Miranda[] warnings were given before or during either interview. Defendant maintains (1) he was in custody during the interviews, and (2) his statements were involuntary. We disagree. We conclude that defendant was not in custody when he made the statements and that the statements were voluntary. The statements were therefore properly admitted.

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

Second, defendant contends that the trial court erroneously admitted evidence that, about a week before the babys death, he threw a cordless telephone and accidentally injured the babys upper lip or frenulum. He argues that this evidence constituted inadmissible character evidence. (Evid. Code, § 1101, subd. (a).) We conclude that the evidence was properly admitted, because it tended to show that defendant intended to commit the charged offense. (Evid. Code, § 1101, subd. (b).) Nor was the evidence more prejudicial than probative. (Evid. Code, § 352.)

Third, defendant contends that the trial court erroneously refused to give instructions on the lesser included offense of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and simple assault (§ 240). We disagree. We conclude that both instructions were properly refused, because neither was supported by substantial evidence. Rather, the evidence showed that if defendant was guilty at all he was guilty of the charged offense.

Fourth, defendant requests that the matter be remanded to the trial court with instructions to redact a portion of his probation report, which the trial court ordered stricken. The People do not oppose this request, and we find it proper to grant it.

Accordingly, we affirm the judgment, and remand the matter to the trial court to redact the portion of defendants probation report that the trial court ordered stricken. A copy of the redacted report shall then be forwarded to the Department of Corrections.

FACTS AND PROCEDURAL HISTORY

A. The Cause of the Babys Death

As noted, an autopsy showed the baby died of nonaccidental blunt force traumatic injuries of the torso, specifically, 18 fractured ribs on both sides of the rib cage and in the back of the rib cage. Death could have resulted from asphyxiation at the time force was applied, or from an inability to breathe because the rib musculature was no longer in place (a flailed chest). Death occurred within minutes after the injuries. It was not possible to pinpoint the time of the babys death.

The pathologists who testified for the prosecution were unable to say exactly how the fractures occurred. They could have been caused by a squeeze or a hug if an extreme amount of force was used. They also could have been caused by stepping on the baby. They could not have been caused by CPR, however. Nor could they have been caused by a parent rolling over onto the child. The most common type of compression is posterior to anterior, or front to back. The fractures bled. This showed they occurred before death. Petechial, or "tiny pinprick" hemorrhages were found on the babys lungs and heart. These are common in sudden infant death syndrome (SIDS) deaths and could also have been caused from squeezing.

The babys only external injury was an abraded frenulum (the thin flap of skin that connects inner lip to gum). This injury occurred several days before death.

It is possible that the baby appeared to be fine shortly after he died or while he was dead or in the process of dying. He may have gasped for air and made a small noise or moved his head before he died.

B. The Circumstances of the Babys Death

Aldama and defendant started dating in April 2000. Aldama became pregnant about two months later. At that time, Aldama and defendant were living in an apartment with defendants parents. In August 2000, they moved into their own apartment, located across the street and in the same apartment complex from defendants parents.

After the move, Aldama did not speak to defendants parents. Defendants parents did not acknowledge the baby, and never visited him. Defendants parents made defendant choose between them and Aldama and the baby. Aldama called defendants mother a "bitch" to defendant.

Defendant was employed as a security guard at a local mall. He worked overtime and graveyard shifts. After the baby was born, Aldama was not employed outside the home, and stayed home to care for the baby. Defendant helped with the baby when he came home from work.

Aldama gave birth to the baby by cesarean section. She remained in the hospital for five days. The baby remained in the hospital for seven days. Aldama was depressed and in pain after she left the hospital. She had gained weight, her clothes no longer fit, and she was getting little sleep.

Both before and after the baby was born, defendant and Aldama argued about money, Aldamas strained relationship with defendants parents, and about defendant going out at night. Aldama often started an argument, then refused to speak to him. The arguments increased after the baby was born.

On March 14, Aldama wrote defendant a note saying she was "acting this way" because she was depressed due to her weight gain, the bills, her pain, and her inability to care for herself. She complained that defendant was paying little attention to her. She felt better after a couple of days.

Aldama sometimes screamed or yelled at defendant. She became angry with him when he was outside with his uncle and his friends. One night, she yelled to him, "Get your ass home you motherfucker." About two weeks before the baby died, Aldama told defendant he should spend more time at home. He began to stay home more often, and things got better.

A few days before the baby died, defendant told Aldama he was jealous of the baby and felt hatred toward him because "he has love, he has everything." Aldama dyed her hair and paid more attention to defendant, and he liked it. Things were better between them.

Just before the baby was two months old, defendant became angry when someone called and told him that Aldamas car had been hit in the parking lot of their apartment. Defendant threw a cordless telephone on the sofa, and it hit the baby. The baby had a red mark on his forehead. Aldama was able to calm the baby, and he was not taken to the hospital.

On May 8, Aldama did not feel well. Defendant came home at approximately 4:00 p.m. and offered to take care of the baby while Aldama rested. Aldama watched television, and fell asleep on the living room sofa about 9:00 p.m. Defendant and the baby were in the bedroom. The babys crib was in the bedroom. The monitoring device on the babys crib was not on that evening. The baby was not crying nor colicky that evening, but was having "little pains" for which they had given him tea.

Aldama woke up on the couch around 2:00 or 3:00 a.m., and turned the television off. The bedroom door was closed. Aldama went into the bedroom to check on the baby. She turned on the light. The baby was lying on his stomach in the crib. Defendant was asleep on the floor beside the crib. At that time, it was unusual for defendant to be sleeping on the floor. He and Aldama had not argued that evening.

Aldama checked on the baby. She put her hand on the babys back to make sure he was breathing. She said she "had an ugly feeling inside." But the baby made a "small gesture" and noise, and moved his head. At that point, she thought the baby was all right. She laid his head down with her hand, tucked him in, and looked at him for several minutes. She turned off the light, and fell asleep on the bed. She did not get under the covers. The next morning, the bed was still made.

Aldama woke at 7:00 a.m. Defendant was asleep in the same position on the floor. Aldama woke him because he was late for work. The baby was lying in the same position in the crib. The telephone rang in the living room and defendant answered it.

Aldama went to the baby, and found he was stiff and cold. She picked him up. He would not wake up. He had a purplish mark on his left cheek. She put him back into the crib, and started screaming that he was dead. Defendant came back into the bedroom, and started cardiopulmonary resuscitation (CPR). Aldama left the room and called 911. Meanwhile, defendant gave the baby CPR in the bedroom. At one point, he said the baby was breathing again. Aldama went outside to wait for emergency personnel.

Officer Rolain was the first to arrive. He attempted CPR, although he believed the baby was already dead. His forehead and forearms were livid, and his skin was cyanotic. He was cold and stiff to the touch. Defendant kept repeating that the baby was going to be okay. Minutes later, paramedics and firefighters arrived.

Defendant was very upset. He was crying, sobbing, yelling, and screaming. He kept beating his fists against the wall and saying, "Why? Why? . . . that should be me." He asked two or three times whether CPR could have killed the baby. The paramedics believed the baby died of SIDS, and explained SIDS to both parents.

The fire captain noticed that defendant was visibly angry. He said this was unusual in a SIDS case. He talked with defendant and was satisfied that defendant was not angry at the emergency personnel.

Several people came to the apartment, including defendants friend and supervisor, David Chapa (Chapa). Chapa said defendant was "upset, outraged" and blaming himself. About four or five times, Chapa heard defendant say, "Its my fault. Hes dead. I killed him." Chapa tried to console defendant.

While Chapa and defendant were standing outside the apartment, defendants parents arrived. Defendant just "blew up" and started yelling at his parents. Chapa heard defendant say, "You never wanted to see the baby when he was born and now hes dead. You know, you just come [sic] down here to make me feel bad." Aldama heard defendant say, "What are you doing here? Isnt that what you wanted. Hes dead already." Defendant pushed his father away, and his parents left.

After the babys death, defendant did not say anything to Aldama about what happened to the baby. Aldama was upset, but would not cry in front of defendant.

C. Defendants Two Interviews with Police

Defendant was questioned by police in two separate interviews on August 8, 2001. No Miranda warnings were given before or during either interview. Before trial, the trial court ruled that statements defendant made during both interviews were admissible, because he was not in custody and the statements were voluntary. Defendant was arrested about two weeks after the interviews. Both interviews were videotaped, and redacted copies of the videotapes were played before the jury. The jury was also given redacted transcripts of the interviews.[]

Portions of both interviews were excluded under Evidence Code section 352.

Detective Jeffrey Hicks (Hicks) of the Indio Police Department set up the first interview by contacting the defendant by telephone. As agreed, Hicks and his partner met defendant at defendants uncles apartment in Moreno Valley. (At the time, defendant was living with his uncle in Moreno Valley.) Due to noise in the apartment and the presence of a dog with aggressive tendencies, the defendant agreed to go with Hicks and his partner to the Moreno Valley Police Department for the interview.

Before the interview, Hicks told defendant, "[T]his is voluntary. If you dont want to talk to me, you dont have to but I have questions for you." At trial, defendant admitted that he voluntarily agreed to go with Hicks to the Moreno Valley Police Department. Defendant said Hicks was friendly, polite, and respectful to him, and he was comfortable speaking with Hicks.

During the first interview, defendant initially denied any involvement in his sons death. He said he did not lose his temper with the baby on the night of May 8. Hicks told defendant that the baby did not die of SIDS, but of rib fractures that were not caused by CPR. Hicks asked defendant if he squeezed the baby while holding him, and defendant said "no, no."

Hicks told defendant about the babys injured frenulum, and defendant explained that he threw a cordless telephone and accidentally hit the baby, because he had lost his temper. Defendant then admitted that he squeezed the baby "a couple of times" to show him love. Hicks kept asking defendant how hard he squeezed the baby. Then, defendant said he may have fallen asleep with the baby in the bed. Hicks asked defendant whether he rolled over on top of the baby. First, defendant said he didnt remember. Then, defendant said he remembered waking up on top of the baby. He said he held the baby a while, made him some tea, and knew he was still breathing. He then put the baby in his crib. He said he may have been lying on top of the baby for 45 minutes. Hicks then brought defendant something to drink. Later, defendant said he may have squeezed the baby after he fell asleep with his legs around a pillow as if he "was holding onto covers."

Hicks asked defendant if he would be willing to take a polygraph test in San Bernardino. He told defendant, "If you dont want to, you dont have to. I will take you home right now. I will leave you alone." Defendant agreed to take the polygraph test. Hicks asked defendant if he was telling the truth and defendant said he was. When Hicks thanked defendant for being honest, defendant said, "I killed him man." He also said he had nothing to hide.

Hicks drove defendant to the San Bernardino County Sheriffs Department in San Bernardino. On the way, they stopped at an In-N-Out Burger and got something to eat.

In San Bernardino, defendant was interviewed by Robert Heard (Heard), a retired police officer and civilian employee of the sheriffs department. Hicks and Heard told defendant that Heard was a polygraph examiner. Hicks left the room, and Heard questioned defendant.

Heard told defendant he was not in custody, but if he wanted to leave he had to be escorted out. Heard told him it would be difficult to find his way out, and he did not want sheriffs deputies to wonder where defendant was going. Heard told defendant he would be given a polygraph test. (Outside of defendants presence, Hicks told Heard about what defendant told Hicks during the first interview. Heard was schooled in interrogation techniques.)

Heard employed various interrogation techniques during the second interview. His demeanor was very low key. He made implicit promises of leniency to defendant. He told him that the district attorney was primarily interested in (1) whether defendant would do "it" again, and (2) whether defendant was remorseful. He also appealed to defendants religious beliefs.

At the beginning of the interview, Heard showed defendant a polygraph consent form, which defendant read but did not sign. After reading it, defendant asked Heard to explain what "duress" meant. Heard said, "[D]uress, let me explain something to you, voluntarily without duress, duress means Robert — you better take this or else [—] thats duress." When defendant asked, "What happens if I dont?" Heard told him, "Well, you have to talk to them if you dont. All I would ask you to do is give me a chance to explain the questions at any time, you could say stop. At any time, Ok?"

Heard noticed that defendant was wearing a cross around his neck, and said, "[I]f you do believe in God then you have to just say hey, what happened, happened. What big Robert has to do is move from this day forward. Youre still a very young man . . . ." He said the district attorney was going to want to know two things: "Will it ever happen again? And does he feel bad about it? Thats called remorse. Do you feel bad? Ok?" Defendant responded, "Yes, I do."

Heard then explained to defendant that he needed to know the truth so he could write a report and say that defendant was telling the truth and felt bad, as opposed to reporting that defendant lied and didnt feel bad. Heard also extolled his own virtues. He said he didnt use foul language. He said, "Im not only good at what I do. Im real good. Im very good at what I do and Im real fair. Robert, I have kids and I have grand kids [sic]. And I know what you must be going through."

Defendant responded, "I killed him." Heard said, "I know you killed him, but how though . . . . How, how did it happen?" Defendant was crying. He said, "I fell asleep on him." Heard said, "[Hicks] says that you squeezed him a couple of times or?" Defendant answered that he was giving the baby love. Defendant continued to describe how he fell asleep on the baby, but the baby was breathing when he put him in the crib, and Aldama checked on him and later also said the baby was breathing.

Heard probed defendant about whether he squeezed the baby. He suggested that fathers squeeze their children without realizing how fragile they are, and they may accidentally squeeze a child too hard. Heard said, "The problem is, is that you say this is how it happened and I test you and its not true. That dont [sic] look good."

Defendant answered, "Maybe I did do that?" And Heard answered, "Well, maybe you did . . . Im not going to get upset. . . . You were trying to get him to be quiet or something like that? Not realizing that hey . . . his ribs are real soft. Talk to me Robert." Defendant was crying and nodded his head yes. Heard asked, "How do you think you did it?" and defendant said, "Like I just told you."

Heard left the room and returned with a soft doll and gave it to defendant. He asked defendant to show him how he squeezed the baby, using the doll. He inquired of defendant as to how many times he squeezed the baby, and defendant said, "Like three four times, five, I dont know." Defendant was very upset.

Heard pressed defendant for more details. Defendant said he didnt know what time it was when he did it, but he was sure the baby was still breathing. Heard said, "That is not the problem, but heres . . . the thing that Im, Im struggling with a lot of what you would go down as a liar. Im not really sure you fel[l] asleep. Ive have [sic] seen too many daddys, too many daddys say I really didnt realize what Im doing. . . . And Ive written a report that says it will never happen again. I assure you that and if you . . . ."

The interview continued as follows:

"[Defendant]: I assure you of that. (Crying). I didnt fall asleep. Ok.

"[Heard]: Im sorry I didnt . . . .

"[Defendant]: God. (Crying)[.]

"[Heard]: Remember, Im real hard of hearing.

"[Defendant]: You dont know how much I want to get a gun and get it over with. (Crying).

"[Heard]: Dont do that Robert. Dont even think that way. You got too much to live for.

"[Defendant]: Oh, shit sir, Im fucked. (Crying).

"[Heard]: You got too much to live for.

"[Defendant]: Im fucked (crying).

"[Heard]: Let me tell you something Robert. Ive seen a lot of people.

"[Defendant]: Shit. (Crying).

"[Heard]: A lot of people.

"[Defendant]: Im fucked.

"[Heard]: Robert let me ask you something. Robert, is this the squeezing?

"[Defendant]: Yes, shit, it is.

"[Heard]: Did that kill little Robert?

"[Defendant]: It was (crying), I dont know.

"[Heard]: Ok.

"[Defendant]: But he was still breathing.

"[Heard]: Ok. Did this cause the injuries?

"[Defendant]: Yes. (Crying).

"[Heard]: Ok.

"[Defendant]: Yes.

"[Heard]: Did you do anything else, like drop him, throw him?

"[Defendant]: No.

"[Heard]: Did you hit him with anything?

"[Defendant]: No. (Crying)[.]

"[Heard]: Ok. So the doctor says the ribs were broken. This is it?

"[Defendant]: Yes sir.

"[Heard]: If little Robert was here right now, what would you tell him? What would you tell him?

"[Defendant]: What would I tell him?

"[Heard]: What would you tell him? If you could squeeze the little Robert right now, what would you tell him?

"[Defendant]: Im sorry.

"[Heard]: What would you tell his mom?

"[Defendant]: I killed your son. (Crying)[.]

"[Heard]: (Unintelligible) yourself, Ok. Were you angry when that happened, were you upset . . . with working too much or something?

"[Defendant]: Everything, [e]verything hurt. Everything. ([C]rying)."

Defendant told Heard he didnt know why he did it. But it was a "fair statement" to say he was angry and frustrated. Heard asked defendant if he was willing to tell Hicks what he said, and defendant said, "Im going down" and "Im going to jail." Hicks came into the room, and Heard asked defendant to tell Hicks what he had told Heard. Heard said to Hicks, "He feels terrible. [¶] . . . [¶] [H]e is just sick. Maybe a little anger problem and need some anger management."

Defendant showed Hicks how he had squeezed the baby, using the doll. Hicks then reassured defendant that he was not going to jail, and went to get him something to drink. The interview continued:

"[Defendant]: I lied to you holmes.

"[Hicks]: Ok, you lied to me, Ok. (Unintelligible).

"[Defendant]: (Crying)[.] I didnt mean to holmes. I swear to God.

"[Hicks]: I, I believe you didnt mean to hurt your, hurt your son, theres not [sic] doubt about that, Ok? It happened.

"[Defendant]: Oh, shit. (Crying).

"[Hicks]: When, when you said you were upset about everything, what were you upset about? I dont know the (unintelligible) . . . .

"[Defendant]: The crying, her words. She wasnt working, you know, how that is.

"[Hicks]: Ok. I do know how that is, I do know how that is.

"[Defendant]: (Unintelligible) . . . . No food in the freezer . . . .

"[Hicks]: Ok.

"[Defendant]: Her, my mom, my parents, her family, him.

"[Hicks]: Your family (unintelligible) so just kind of put like everything was coming to your head on you.

". . . Ok. Ok. And you, you picked him up, was he facing you or was he facing away from you?

"[Defendant]: Facing me.

"[Hicks]: Facing you? Ok. You squeezed him like this? Ok. When, when you were doing that, were you angry at the time when you were doing that?

"[Defendant]: Yes sir, why would I do it?"

Again, defendant said he didnt mean to kill the baby, that he was still breathing, and that Aldama had checked on the baby twice that night. Hicks reminded defendant that he was not under arrest, and "offered" him the chance to write a letter to Aldama explaining what happened and that he felt bad about it. Defendant said he couldnt do it. Defendant also said he was telling the truth, and wanted to take the polygraph test. Heard said defendant was too upset to take the test. Hicks then took defendant home.

D. Defense Case

Defendant testified in his own defense. He was very happy when Aldama became pregnant and when his son was born. He did not consider the baby a nuisance.

Defendant testified about his relationship with Aldama. When she was released from the hospital, she was in pain and required a lot of assistance from defendant. This did not make defendant angry. He also said he was not jealous of the time Aldama was spending with the baby.

Once, Aldama yelled at him in front of his family and friends. She said, "Come home you motherfucker. Youre a faggot." This made defendant angry. Aldama did not want to be touched because she was still healing from the surgery. This also made defendant angry at times.

Defendant said he and Aldama were having money problems. This made him angry at himself. He said it made him feel that he was not doing his duty as a man because he was not taking care of his family. Sometimes he had to skip meals, which also made him angry at himself. He applied for a second job, but Aldama did not want him to work two jobs.

Defendant said that, about a week before the baby died, he threw a cordless telephone at the sofa, but not at the baby. He said he did not mean to hit the baby and was sorry he did. He was not angry at the baby.

Defendant said that Aldama normally went to bed at midnight after watching television. The baby slept in the crib. In May 2001, defendant slept on the floor "most of the time" because Aldama did not want to be touched. Aldama usually slept on the couch or the bed.

On May 8, defendant got home from work at approximately 4:00 p.m. That evening, defendant cared for the baby while Aldama rested on the sofa and watched television. About 11:00 p.m. or 12:00 a.m., he put the baby in his crib and fell asleep on the floor beside the crib. The baby sometimes slept through the night. Aldama was awake about 11:00 p.m.

After defendant fell asleep, Aldama came into the bedroom and turned on the light. After the baby died, Aldama told defendant she checked on the baby two or three times after he put the baby in the crib. Aldama was a light sleeper after the baby was born and woke more easily to noises.

Defendant denied squeezing the baby to death or killing him. He said the baby was fine when he put him in his crib on the evening of May 8.

On the morning of May 9, defendant thought his efforts at CPR were working. He got upset when the paramedics said the baby had been dead for hours. He thought they lied to him because earlier he thought Officer Rolain agreed that the CPR was working. He was also angry that he could not bring his son back.

Defendant also explained that, when he said it was his fault and that he killed the baby, he meant that he thought he had done something wrong when attempting CPR and he felt he should be punished for not being able to save his son.

Defendant said he did not remember falling asleep on the bed with the baby, or waking up on top of the baby. He explained that when he told Hicks he may have been lying on top of the baby for 45 minutes, he meant that it could have happened, or that he might have squeezed the baby in his sleep. He was hoping to find out what happened to his son.

Defendant also explained that he told Heard he squeezed his son to death, because Heard led him to believe that thats the only way the baby could have been hurt. He also explained why he told Heard he killed his son. He said it was because he felt he should be punished because he couldnt help his son and because he had not been "man enough to show him to my parents when he was still alive." He told Heard he wanted to get a gun and kill himself because he thought he should have died, rather than the baby.

Defendant said that he squeezed the doll at the polygraph office to demonstrate how he thought he had accidentally hurt his son when he found him in the morning. He told Hicks that he squeezed his son to show that he loved him.

DISCUSSION

A. The Trial Court Properly Admitted Defendants Statements to Hicks and Heard, Because Defendant Was Not in Custody During the Interviews and His Statements Were Voluntary

Defendant contends that the trial court erroneously denied his motion to suppress statements he made during the first and second interviews. He maintains that he was in custody when he made the statements, and that the statements were therefore inadmissible because he was not given Miranda warnings.[] He further argues that his statements were inadmissible because they were involuntary under the totality of the circumstances.

Under Miranda, suspects who are subjected to custodial interrogation must be told they have a right to remain silent, that anything they say can and will be used against them in court, that they are entitled to the presence of an attorney during questioning, and that if they cannot afford an attorney, one will be appointed for them. (Miranda, supra, 384 U.S. at pp. 444-445.) Statements obtained in violation of this rule cannot be used to establish the suspects guilt. (Ibid.)

We disagree. We conclude that defendant was not in custody when he made the statements, and that the statements were voluntary. We first address the custody issue. We then explain why defendants statements were voluntary under the totality of the circumstances.

1. Custody

"It is settled that the Miranda advisements are required only when a person is subjected to `custodial interrogation." (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161 (Aguilera), citing Miranda, supra, 384 U.S. at p. 444.) The test for whether an individual is in custody is: was there a "`formal arrest or restraint on [the defendants] freedom of movement of the degree associated with a formal arrest. [Citations.] [¶] . . . [¶] `Two discrete inquiries are essential . . . first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." (People v. Ochoa (1998) 19 Cal.4th 353, 401-402.)

We accept the trial courts findings concerning the circumstances surrounding the interrogation, if they are supported by substantial evidence. We independently determine, in view of these circumstances, whether "`a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave." (People v. Ochoa, supra, 19 Cal.4th at p. 402.) Here, the circumstances surrounding the interviews were undisputed at trial.

"Whether custody has occurred short of a formal arrest depends upon the totality of the circumstances . . . ." (People v. Morris (1991) 53 Cal.3d 152, 197, overruled in part by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) "No one factor is dispositive. Rather, we look at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest."[] (Aguilera, supra, 51 Cal.App.4th at p. 1162.)

The relevant factors include "whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the persons conduct indicated an awareness of such freedom; whether there were restrictions on the persons freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation." (Aguilera, supra, 51 Cal.App.4th at p. 1162.) An officers subjective focus of suspicion on the suspect is not a relevant factor, unless that suspicion is conveyed to the suspect, by word or deed. (People v. Stansbury, supra, 9 Cal.4th at p. 830 and fn.1.)

Here, the interviews took place at police and sheriffs stations, and it was obvious to a person in defendants position that he was the focus of the investigation. However, defendant agreed to go to both interviews. Neither interview lasted more than an hour. He was given food and water. His freedom of movement was restricted only to the extent that the interrogations occurred in rooms with the doors closed. Most importantly, he was repeatedly told that he was not under arrest, that he was not going to be arrested, and that he was free to leave at any time. Thus, a reasonable person in defendants position would have believed he was free to terminate either interview, at any time.

Defendant maintains that the accusatory and confrontational form of some of Hickss and Heards questions, and their expressions of disbelief at his initial stories, reasonably led him to believe he was not free to leave. We disagree. Again, the interviews were not lengthy, and defendant was told he was free to leave. Additionally, the officers did not repeatedly press defendant to change his stories. Rather, defendant quickly changed his stories after he was asked only a few more questions.

The interrogations were not confrontational in nature. At the second interview, Heard did not continually question defendant. Up until the time defendant demonstrated with the doll how he squeezed his son, defendant did most of the talking with little questioning by Heard. Given the indications by the interrogators that defendant was free to leave, he was given an opportune time to discontinue the interrogation should he have desired.

Defendants reliance on People v. Esqueda (1993) 17 Cal.App.4th 1450 is misplaced. There, the defendants statements were held inadmissible because he was in custody and not given Miranda warnings. He was transported to two different police stations where he was interrogated for hours, beginning after midnight and continuing until 2:30 p.m. the following afternoon. Between interrogations, he was placed in a holding tank. After he repeatedly denied any involvement in his wifes death, the officers refused to accept his story. They told him, "`[l]ocked up, you got no place to go" and "[i]f we have to be here two days straight, well be here." (People v. Esqueda, supra, at p. 1476.) Here, however, the interviews were not lengthy, and defendant was repeatedly told he was free to leave. Thus, Esqueda is distinguishable.

Defendants reliance on Alvarado v. Hickman (9th Cir. 2002) 316 F.3d 841 is similarly misplaced. There, the court held that a 17-year-old suspect, who had no prior history of arrest or police interviews, was in custody. The suspects parents took him to the police station to be interviewed, after an officer called his mother. The parents were refused permission to be present during the interview. The suspect was not told he was free to leave until the end of a two-hour interview. (Id. at p. 846.)

Here, however, defendant was 22 years old when he was interviewed. He admitted he voluntarily went to the first interview, and the evidence showed that he also agreed to go to San Bernardino for a polygraph test. He was not inexperienced, because he had a previous arrest for methamphetamine use. And as we have stressed, he was repeatedly told he was free to leave before and during both interviews.

2. Voluntariness

Defendant contends that his statements during the second interview at the San Bernardino County Sheriffs Department were involuntary. He also challenges, for the first time on appeal, the voluntariness of his statements during the first interview at the Moreno Valley Police Department.

In the trial court, defendant restricted his voluntariness challenge to the statements he made during the second interview. For this reason, the People contend that defendant has waived his right to challenge the voluntariness of his statements during the first interview. We agree that the issue has not been preserved for appeal. (People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14; People v. Waidla (2000) 22 Cal.4th 690, 726, fn. 8.) Nevertheless, we consider the voluntariness of defendants statements in the first and second interviews.

The trial court found that defendants statements during the second interview were voluntary. It reasoned that defendant "presents as a person who wanted to tell his side of the story and the police were very accommodating in listening to him. They wanted to hear what he had to say. No doubt that they were there, on the polices part at least, for other reasons than the administration of a polygraph. They did want to hear anything Mr. Veliz was going to be willing to tell them. But that certainly does not mean these statements by Mr. Veliz were not voluntary."

Defendant maintains that his statements were involuntary because the officers made implicit and explicit promises of leniency, appealed to his religious beliefs, and took advantage of his distraught emotional state. He also points to the failure to give Miranda warnings, and his youth and lack of sophistication.

We independently review a trial courts determination of voluntariness. We do so, "`in light of the record in its entirety, including "all the surrounding circumstances—both the characteristics of the accused and the details of the [encounter]" . . . . [Citations.]" (People v. Neal (2003) 31 Cal.4th 63, 80.) "In evaluating a claim of psychological coercion, the `question posed . . . is whether the influences brought to bear upon the accused were "such as to overbear [his] will to resist and bring about confessions not freely self-determined." [Citation.]" (People v. Kelly (1990) 51 Cal.3d 931, 952-954.)

The videotapes show that Hicks and Heard were both respectful, deferential, and sympathetic to defendant. They did not bully, shout at, insult, or threaten him. The first interview lasted no more than an hour, and the second interview lasted only 45 minutes. As we have stressed, defendant was repeatedly assured that he was not under arrest and that the interviews were voluntary and could be terminated at any time. Defendant was given food and water. Defendant speaks English with ease, and completed 10th grade.

The videotapes also showed that defendant wanted to speak. His first inculpatory statement was made near the end of the first interview when he said, "I killed him." This statement was not in response to any question. Early during the second interview, defendant quickly changed his story about falling asleep on the baby, and admitted he squeezed the baby because he was angry.

Although Hicks and Heard made implicit promises of leniency relative to what the district attorney would want to know, and appealed to defendants religious beliefs, the videotape of the second interview shows that these and the officers other ploys did not overcome defendants will. Rather, defendants inculpatory statements were a product of his own free will. Furthermore, although defendant was at times emotional, the videotape does not reflect that he was so overwrought that his statements were not the product of a rational intellect and free will.

B. The Trial Court Properly Admitted the Evidence that Defendant Threw a Cordless Telephone and Injured the Baby

Defendant contends that the trial court erroneously admitted the evidence that, about two weeks before the babys death, he threw a cordless telephone on the sofa where his son was lying, and (accidentally) injured the babys upper lip. He argues that the evidence was inadmissible propensity evidence and more prejudicial than probative. (Evid. Code, §§ 352 & 1101, subd. (a).)

We conclude that the trial court did not err in admitting the evidence to show that defendant intended to commit the charged offense of assault resulting in the death of his son. (Evid. Code, § 1101, subd. (b).) We further conclude that the evidences probative value outweighed its prejudicial effect. (Evid. Code, § 352.)

Evidence that a defendant has committed an act or offense other than the charged offense is not admissible to prove that he or she is a person of bad character or has a criminal disposition. But evidence of a prior act or offense is admissible to prove "the intent with which the [defendant] acted in the commission of the charged crime[]." (People v. Kipp (1998) 18 Cal.4th 349, 369.)

The evidence must be sufficiently similar to the charged offense to support a rational inference of intent. (People v. Kipp, supra, 18 Cal.4th at p. 369.) The rationale for this rule is well settled: "`[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish . . . the presence of the normal, i.e., criminal, intent accompanying such an act . . . . [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)

"Section 273a[, subdivision (b)] is a general intent crime. The mens rea for the crime is willfully assaulting a child under eight years of age with force that objectively is likely to result in great bodily injury—that is, the assault must be intentional." (People v. Albritton (1998) 67 Cal.App.4th 647, 658, italics added.)

The evidence that defendant threw the telephone tended to show that he acted out in anger toward the baby. The telephone-throwing incident occurred very shortly before the babys death, and was very similar to the charged offense that defendant acted out in anger toward the baby, causing his death. Both incidents involved angry outbursts, resulting in violence toward the baby. Thus, the telephone-throwing incident was admissible on the issue of defendants general criminal intent to commit the charged offense. It tended to show that the incident which resulted in the babys death was not an accident or an inadvertent act.

Even where evidence is not required to be excluded under Evidence Code section 1101, a further inquiry under Evidence Code section 352 is required. (People v. Balcom (1994) 7 Cal.4th 414, 426-427.) The trial courts evaluation of the evidence under Evidence Code section 352 is reviewed for an abuse of discretion. (People v. Daniels (1991) 52 Cal.3d 815, 858.)

The probative value of a prior act or offense stems from its similarity to the charged offense. The close proximity in time of a prior act to the charged offense increases the probative value of the prior act. (People v. Balcom, supra, 7 Cal.4th at p. 427.) The telephone-throwing incident occurred very close in time to the charged offense — about one week. Although inherently prejudicial, the telephone-throwing incident was highly probative on the issue of defendants state of mind at the time of the charged offense. Thus, the trial court did not abuse its discretion in allowing the evidence.

Even if the evidence of the telephone-throwing incident should have been excluded, it is not reasonably probable that its admission affected the jurys verdict. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence that defendant assaulted the baby and caused his death was overwhelming. During the second interview, defendant admitted to Heard and Hicks that he squeezed the baby because he was angry and frustrated.

Lastly, we note that the trial court correctly ruled that the telephone-throwing incident was not admissible under Evidence Code section 1109, because it did not constitute a prior act of domestic violence, as defined in section 13700. Under Evidence Code section 1109, a defendants prior acts of "domestic violence" are admissible to show that he or she had a propensity to commit one or more charged offenses involving domestic violence. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) For purposes of Evidence Code section 1109, the term "domestic violence" is defined in section 13700. (Evid. Code, § 1109, subd. (d).) It includes abuse committed against a spouse, former spouse, cohabitant, person with whom the suspect has had a child, or person with whom the suspect had had or is having a dating relationship. It does not include abuse against a child. (§ 13700.) Nor does the charged offense of section 273a, subdivision (b) involve an act of domestic violence.

C. The Trial Court Properly Refused to Instruct the Jury on the Lesser Offenses of Assault by Means Likely to Produce Great Bodily Injury and Simple Assault, Because There Was No Substantial Evidence that Defendant Committed Either Lesser Offense

Defendant contends that the trial court erroneously refused to instruct the jury on the lesser included offenses of assault by means likely to produce great bodily injury (& sect; 245, subd. (a)(1)) and simple assault (§ 240). The jury was only instructed on the charged offense of assault resulting in the death of a child under eight years of age. (& sect; 273a, subd. (b).) This was proper.

"`[A] trial court must instruct on lesser included offenses . . . whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. [Citation.] Conversely, . . . a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)

Indeed, "[i]t is error . . . to instruct on a lesser included offense when a defendant, if guilty at all, could only be guilty of the greater offense, i.e., when the evidence, even construed most favorably to the defendant, would not support a finding of guilt of the lesser included offense but would support a finding of guilty of the offense charged." (People v. Stewart (2000) 77 Cal.App.4th 785, 795-796.)

A violation of section 273a, subdivision (b) occurs where any person, having care or custody of a child 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 childs death." (Italics added.) A violation of section 245, subdivision (a)(1), occurs where an assault on any person is effected "by any means of force likely to produce great bodily injury." A simple assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.)

Notwithstanding whether the assaults described in sections 240 or 245, subdivision (a)(1), are lesser included offenses to a violation of section 273a, subdivision (b), the evidence showed that, if defendant was guilty at all, he was guilty of the charged offense. The baby died. He was not merely the victim of an assault. Moreover, there was no evidence that the baby died from any cause other than force inflicted by defendant. Thus, the jury could not have reasonably concluded that defendant assaulted the baby but did not kill him.

Defendants reliance on People v. Basuta (2001) 94 Cal.App.4th 370, 387, 392 is misplaced. There, the court held that, in a prosecution for violating section 273a, subdivision (b), the failure to instruct on the lesser included offense of violating section 245, subdivision (a)(1), was error, because there was evidence that the child may have died from injuries other than those inflicted by the defendant.

Here, however, the defense theory that Aldama killed the baby was not supported by substantial evidence. There was no evidence that Aldama applied any force that may have caused the babys death.

D. The Matter is Remanded to the Trial Court to Redact the Portion of the Probation Officers Report That the Trial Court Ordered Stricken

Pursuant to defense counsels request, the trial court ordered a portion of the probation officers report stricken. The stricken portion appears at page 6, lines 27 through 43, of the probation officers report. The stricken portion remains clearly legible. The stricken portion consists of certain statements that Hicks made to the probation officer. At the sentencing hearing, defense counsel expressed concern that the statements would be misconstrued by the Department of Corrections.

Defendant asks that the matter be remanded to the trial court to properly redact the probation officers report, and to forward redacted copies of the report to the Department of Corrections. The People do not oppose defendants request. We agree that it should be granted. (§ 1260; see, e.g., In re Candelario (1970) 3 Cal.3d 702, 705 [court has inherent power to correct clerical errors in its records].)

DISPOSITION

The judgment is affirmed. The matter is remanded to the trial court to redact the portion of defendants probation report that the trial court ordered stricken, specifically, lines 27 through 43 at page 6 of the report. A redacted copy of the report shall then be forwarded to the Department of Corrections.

We concur Hollenhorst Acting P.J., and Ward J.


Summaries of

People v. Veliz

Court of Appeals of California, Fourth District, Division Two.
Nov 3, 2003
No. E031885 (Cal. Ct. App. Nov. 3, 2003)
Case details for

People v. Veliz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT VELIZ, Defendant and…

Court:Court of Appeals of California, Fourth District, Division Two.

Date published: Nov 3, 2003

Citations

No. E031885 (Cal. Ct. App. Nov. 3, 2003)