Opinion
G046236
07-26-2012
THE PEOPLE, Plaintiff and Respondent, v. ERIK MAGANA, Defendant and Appellant.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 11NF1448)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Daniel Barrett McNerny, Judge. Affirmed.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted defendant Erik Magana of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a); all statutory references are to this code) and found the allegation he inflicted great bodily injury (§ 12022.7, subd. (a)) to be true. The prosecution presented evidence Magana used his hands to beat Yherui Rodriguez into unconsciousness. Rodriguez suffered brain trauma, could not speak normally when he regained consciousness, and spent time in a rehabilitation center. Magana spoke with police officers a few weeks after the incident and admitted inflicting the beating because he believed Rodriguez had molested teenage girls. At trial, Magana testified Rodriguez started the fight by hitting him in the face after Magana called Rodriguez a "chester" (child molester). Magana acknowledged he had not told the investigating officers Rodriguez started the fight, explaining he had been nervous.
The jury convicted Magana as charged. In December 2011, the court sentenced Magana to the low term of two years for the aggravated assault conviction, and imposed a consecutive three-year term for the great bodily injury enhancement.
Magana filed a notice of appeal from the judgment. We appointed counsel to represent him on appeal. Counsel filed a brief setting forth a statement of the case. Counsel did not argue against his client, but advised this court he found no issues to support an appeal. We provided Magana 30 days to file his own written argument, but we have received no response from him. After conducting an independent review of the record under People v. Wende (1979) 25 Cal.3d 436, we affirm.
Magana's appellate lawyer identifies two potential issues for our consideration: (1) whether the trial court erred in admitting the testimony of Dr. Allen Kong over relevance and foundational objections; and (2) whether police officers coerced Magana's statements with a promise of leniency.
Admissibility of Dr. Allen Kong's Testimony
Kong, a trauma surgeon at University of California Irvine Medical Center (UCI), testified concerning the extent of Rodriguez's injuries. Listed as the admitting physician when Rodriguez arrived at UCI after the April 20 beating, Kong testified he did not actually treat Rodriguez on that date, but examined Rodriguez on May 2.
Kong reviewed the victim's medical records and described his injuries, including a lacerated forehead closed with stitches, "blood collection" in the base of his left ear requiring drainage, and brain trauma called diffuse axonal injury (microhemorrhages). The trial court overruled an objection on foundation and hearsay grounds to a question asking about the severity of the blood collection. Kong answered he could not "really say," but testified Rodriguez needed a feeding tube, which Kong inserted. The court overruled defense counsel's relevance objection to a follow up question asking why he had inserted the tube. Kong answered, "Ordinarily feeding tubes are placed in patients with diminished mental status and/or inability to swallow foods." Kong explained Rodriguez had diminished mental capacity at that time. The prosecutor asked, "Does that mean that between April 20th when . . . Rodriguez was admitted . . . and May when you inserted the feeding tube . . . that his mental capacity diminished during that time period." The court overruled relevance and speculation objections, but Kong asked for the prosecutor to repeat the question. The prosecutor asked a different question, "What I want to know is in April when the patient was admitted to UCI, was he able to feed himself on his own?" Defendant did not object. Kong answered, "No," explaining, "Oftentimes with patients who have brain injury, their ability to swallow can be impaired."
The prosecutor asked about other matters, and then returned to the subject of Rodriguez's injuries. "And if we can go back to the brain injury for a moment. Can you please describe for us the brain injury to this patient." The court overruled relevance and foundation objections. Kong explained, "The brain injury was diagnosed by CT scan and MRI and known as diffuse axonal injury." Kong stated he had not "been previously trained on how to review these CT scans," stating "[t]hat's why we rely on our radiologist to do that." Kong later clarified on cross-examination he did not "per se diagnose diffuse axonal injury on CAT scans or MRI's. Again, that's something best left for a radiologist to do, but for something as . . . straightforward as hematomas [blood collection] in the brain, that we can easily see on CAT scan, those are things I can diagnose." The prosecutor later asked, "Based on your training and experience, what are some effects of a diffuse axonal injury on a person?" The court overruled relevance and foundation objections. Kong answered, "It depends on how . . . severe the injury is. In mild cases one can have either no effect or just some mild impairment. Very severe cases can lead to severe impairment and/or development of coma."
The trial court denied defendant's motion to dismiss (Pen. Code, § 1118.1) the great bodily injury enhancement (§ 12022.7), explaining the evidence was overwhelming, and noted Kong had testified as the supervisor of a medical team treating Rodriguez, and as an expert providing an opinion of injuries and treatment based on his review of medical records: "Unlike [the] situation [in Crawford v. Washington (2004) 541 U.S. 36] or [Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305] where we have law enforcement scientific personnel creating records for purposes of criminal prosecution, medical records created in this case, in the court's view, do not fall in the same categories as the line of [Supreme Court] cases, where they basically tell you you have to bring in all of the people who actually did the analysis. So that was the reason for the court overruling your objections."
Here, Kong testified without objection that Rodriguez's medical records showed he suffered a lacerated forehead, blood collection in the base of his left ear, and brain trauma. Kong also testified that he inserted a feeding tube after personally examining Rodriguez on May 2, which was necessary because Rodriguez's diminished mental capacity impaired his ability to swallow foods. Given Kong's admissible testimony and other evidence demonstrating Rodriguez suffered serious brain injury resulting from defendant's assault, the evidence of great bodily injury was overwhelming and any conceivable error in admitting the evidence was harmless under any standard. (See Williams v. Illinois (2012) 132 S.Ct. 2221 [Confrontation Clause has no application to out-of-court statements that are not offered to prove the truth of the matter asserted, including expert testimony where witness expresses an opinion based on facts made known to expert].)
Coerced Statement
Detective Timothy Shea testified he and another detective interviewed defendant at the La Habra Police Department on May 6, 2011.Magana initially denied involvement in the beating. But the officers told him others had identified him as "the one that did this," suggested they had DNA evidence linking him to the beating, and told him they wanted to hear his "side of the story" to learn whether it was a "mutual fight" or "you and five of your guys just totally beat this kid up for no reason . . . ." They claimed some people had reported he beat Rodriguez because he owed him money, others because the victim was "hanging out with Brenda," a 13-year-old girl who Magana admitted he had "kicked it" with previously. The officers stated, "If you don't tell us why this whole thing went down, we know what went down. You've got to say why it went down" and that if he was "protecting this Brenda chick or . . . looking out for her, okay, that's, hey, I can see that. I wouldn't want anybody fucking around with her anyway you know what I mean, she's a young kid, okay? But otherwise it looks like you're just a thug on the street . . . ."
The prosecutor played a DVD of the interview for the jury. Magana did not object to admission of the interview at trial.
Magana responded, "So you guys got basically a story against me right? That . . . I beat this guy up? Right?" The officers replied, "Here's . . . what we're missing. Here's, we know what happened. We're missing why it happened. Okay? And, that's where you come in. If this is justifiable on your side, if you're saying hey, I'm protecting this chick's honor or whatever, he shouldn't be fucking around with some little girl, then hey, now we know why it happened and then we can explain it, okay? You know what I'm saying?" (Italics added.) Magana asked if the "guy" was dead or in the hospital, and the officers replied he was not dead. Magana asked why it was a big deal that "he just got beat up" and complained everyone was "pointing the finger at" him. The officers stated they "have physical evidence" and they had "talked to Jerry [the victim]" but he would not say "why" defendant had assaulted him, which the officers speculated was "something that he doesn't want out." Magana finally decided to "[f]ill in the gap" and stated he "beat him up" because Rodriguez was a "chester," or child molester who had given a 13-year-old a hickey. It was not the "first time [Rodriguez had] done this . . . ." Magana said he had grown angry and "tired of it. I mean nobody is doing anything about it." He worried about his young cousins who lived at the apartment building, and also mentioned he had a four-year-old daughter. Later, defendant stated he had "confessed what I did" and asked what the detectives were "going to do for" him.
We discern no arguable issue concerning Magana's confession. He did not object to the confession in the trial court. Because a claim of involuntariness generally is a fact-intensive inquiry, appellate courts will not address the issue if not first raised in the trial court. (People v. Ray (1996) 13 Cal.4th 313, 339 [noting parties had no incentive to fully litigate this theory below, and the trial court had no opportunity to resolve material factual disputes and make necessary factual findings].) Magana would fare no better if we addressed the issue. Based on the record before us, the officers' request that Magana tell them "why" the beating happened and their suggestion Magana might have been justified in assaulting the victim did not constitute an express or implied promise of leniency or advantage for confessing. The officers did not tell Magana he would receive any legal benefit if he told the truth and admitted his involvement. Statements suggesting a defendant has one chance to cooperate with the police and tell his version of the facts generally are permitted. (See United States v. Gamez (9th Cir. 2002) 301 F.3d 1138, 1144 [officer's "comment that it would 'behoove' [defendant] to disclose what he knew about [the victim's] murder and that this was his 'last chance' to come forward does not amount to coercion"].)
We discern no other arguable issues.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: RYLAARSDAM, ACTING P. J. BEDSWORTH, J.