Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F10270.
ROBIE, J.
A jury found defendant Tamekca Walker guilty of second degree murder and assault on a child with force likely to produce great bodily injury resulting in death. She was sentenced to state prison for 25 years to life.
On appeal, defendant contends: 1) the court committed prejudicial error by admitting photographs of the 18-month-old victim’s severe postmortem diaper rash; 2) her incriminating statements to police officers should have been suppressed as involuntary; 3) the People failed to prove the corpus delicti on both counts; 4) her sentence constituted cruel and unusual punishment; and 5) cumulative error. We affirm.
FACTS
The child victim was born on April 23, 2006. She tested positive for cocaine at birth, and Child Protective Services (CPS) placed her in protective custody. The child lived in six different homes between April 2006 and September 2007. Her last foster placement was with defendant, who had two additional foster children, and provided day care for other children.
The child had diaper rash and a history of mild asthma. Defendant was given creams to treat the rash but nothing for the asthma.
Janna Thoftne, a social worker for CPS, visited defendant’s home on October 17, 2007. Defendant told her she used the cream and the diaper rash cleared up after two weeks. Thoftne observed that the child alternated between nonresponsiveness and inconsolable crying. Defendant said the child would stop crying when picked up but her day care responsibilities prevented defendant from carrying her all the time. She had thought about returning the child.
Shirley Jackson sent her two sons to defendant for day care. Defendant told Jackson that the child victim had a bad diaper rash, and she had to constantly change her diapers. She said it was probably not a good idea to keep her in light of her crying and that she had told CPS to take the child back.
Sierra Cotton used defendant’s babysitting services for her son. Defendant told her the child victim was more distant than the other children and did a lot of crying. Defendant said she called CPS to get help because the child was always crying. She also told Cotton that the child had some kind of skin rash.
Sacramento Police Officer Sean Cunningham was dispatched to defendant’s home on October 22, 2007. When he arrived at 6:27 a.m., firefighters were administering CPR to the child. Defendant said she woke up at 6:15 a.m. and found her lying face down in the crib. She would not wake up and her fingernails were purple, so defendant called 911.
Thoftne received a voice mail from defendant on October 22, 2007. Defendant was crying hysterically and said something happened to Tamaihya, who was being taken to the hospital. Thoftne called defendant around 10:15 a.m. Defendant told her that she called 911 after checking on Tamaihya, who was warm, but had purple fingernails.
Sacramento Police Officer Tracy Joseph also responded to the dispatch call. Defendant was on the phone leaving a message; she appeared to be making faces, as if she was forcing herself to cry. Her demeanor became normal when she talked to Officer Joseph.
Officer Joseph learned that defendant had three foster children: every night she would set out clothing for the children to wear the following day. Officer Joseph noticed clothing was set out only for the two other foster children.
Defendant told Officer Joseph that she found the child unresponsive, face down in her crib. She shook the child, turned her over, and saw that her fingertips were purple and she had dark-colored lips. Defendant then administered CPR to the baby. She rarely made eye contact with Officer Joseph during their conversation.
The child was pronounced dead at the emergency room that morning. The pathologist did not know exactly how she died but was of the opinion that the cause of her death was “Probable asphyxia by smothering.” She died at least three hours before the emergency workers saw her at 6:30 a.m.
According to the pathologist, a child like the victim could be smothered by placing a hand over her mouth and nose; bruising about her face led him to believe she was smothered. It would take three to five minutes to asphyxiate a child in this manner. The child also sustained numerous bruises about her face, head, and abdomen -- injuries which were not consistent with an accident.
Defendant gave several formal interviews with the police in the three days following the child’s death: a 30-minute interview at her home the morning of October 22, followed by a 90-minute interview at the police station that afternoon, interviews with two detectives totaling five hours at the police station on October 23, and a police station interrogation on October 24 lasting a few hours.
During the October 23 interviews, defendant admitted the child died around midnight, rather than 6:00 a.m., as she originally claimed. She administered CPR on her around midnight, but did not revive her. Defendant panicked for several hours before calling 911 around 6:00 a.m.
On October 24, defendant said she placed her hand over the child’s mouth to stop her crying. Her hand remained over her mouth until her crying stopped.
Defendant’s mother, Cathy Walker, never saw defendant get frustrated with the children. Defendant did not get angry with the victim, who cried “90 percent of the time, ” and had a “purplish, bluish, reddish like” diaper rash. Walker also saw the victim get hit in the head by the other foster children.
Testifying in rebuttal, Sacramento Police Detective Daniel Burke related an interview with Walker where she admitted never seeing the victim get injured.
DISCUSSION
I
Photographic Evidence Of The Victim’s Diaper Rash
Defendant moved to suppress photographic evidence of the victim’s diaper rash at the time of her death, arguing the photographs were irrelevant and highly prejudicial. The court ruled that the pathologist’s testimony at the preliminary hearing established the rash was consistent with long-term exposure to urine in her diaper around the time of death. This was relevant to defendant’s claims that her body was still warm when defendant found her, that the diaper rash had returned, and that she constantly screamed and hollered. Determining the photographs were not prejudicial, the court denied the motion.
According to the pathologist’s testimony, his autopsy showed the child had an injury to the skin resulting from prolonged exposure to urine, leading to a “postmortem burn, or a postmortem diaper rash.” He described the rash as “areas where the skin had been basically sloughed off, exposing the underlying dermis. It was reddened, but appeared to mostly be injury to skin after death because of the contact with moisture and urine, which is... a chemical irritant.” The pathologist stated the child may have had a minor rash obscured by this injury, but it did not “appear that she had a significant antemortem diaper rash.”
Defendant contends the court prejudicially erred. She argues the photographs were not relevant, as the pathologist’s trial testimony established the rash occurred after the child’s death, and the “graphic, disturbing” photographs were highly prejudicial. We disagree.
The admissibility of the photographs “has two components: (1) whether the challenged evidence satisfied the ‘relevancy’ requirement set forth in Evidence Code section 210, and (2) if the evidence was relevant, whether the trial court abused its discretion under Evidence Code section 352 in finding that the probative value of the photograph was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice.... [¶]... [¶] The rules pertaining to the admissibility of photographic evidence are well settled. Only relevant evidence is admissible [citations], and all relevant evidence is admissible, unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends ‘“logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. [Citations.]’ [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence. [Citations.]” (People v. Scheid (1997) 16 Cal.4th 1, 13-14.)
The photographs were relevant. They showed the child victim may have had a mild rash before she died, reinforcing other evidence that she suffered from a persistent diaper rash in defendant’s care. This supports the inference she cried constantly, which provides a motive for her murder. The extensive burning after her death is also relevant, showing she was dead for some time before she was discovered, which discredits defendant’s statements that the child was warm when she found her that morning.
At oral argument, defendant claimed the postmortem rash could have been caused by the diaper remaining on Tamaihya in the several hours between her death and the autopsy. However, the treating nurse testified that the diaper was removed at the hospital while she was being treated.
We have seen the photographs which show severe burning and sloughed off skin. The jury already had been presented with evidence of the child’s death and extensive bruising she sustained in defendant’s care. The photographic evidence of Tamaihya’s severe diaper rash is not prejudicial in this context.
II
Defendant’s Incriminating Statements
Defendant contends her incriminating statements to law enforcement should have been suppressed as they were involuntary. She is mistaken.
Defendant talked to the police six times between October 22, 2007, and her arrest on October 24. She briefly spoke to Officer Cunningham at her home around 6:30 a.m. on October 22. She was interviewed by Officer Joseph moments later. Detective Henry Jason interviewed her around 10:24 a.m. Later that day, Detective Jason interviewed her at the police station for a few hours.
At Detective Jason’s request, defendant returned to the police station around 3:13 p.m. on October 23, 2007, where she was interviewed for about five hours, and also participated in a polygraph examination conducted by Sacramento Police Detective Mark Tyndale. After the test, Detective Tyndale told defendant that he had trouble with her response regarding whether she intentionally did something to the child. Toward the end of the interview, defendant told Detective Tyndale that she had wrapped the child too tightly in a sheet and blanket.
Defendant’s last interview took place on October 24, 2007. Detective Jason administered a Miranda warning, and defendant waived her rights. At the end of the interview, defendant stated she held her hand over the child’s mouth until she stopped crying.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
Defendant moved to suppress the statements made in the October 24 interview. The court denied the motion. Portions of the interviews were introduced at trial.
“A statement is involuntary if it is not the product of ‘“a rational intellect and free will.”’ [Citation.] The test for determining whether a confession is voluntary is whether the defendant’s ‘will was overborne at the time he confessed.’ [Citation.] ‘“The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were ‘such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined.’ [Citation.]” [Citation.] In determining whether or not an accused’s will was overborne, “an examination must be made of ‘all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation.’ [Citation.]” [Citation.]’ [Citation.] [¶] A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citations.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it ‘does not itself compel a finding that a resulting confession is involuntary.’ [Citation.] The statement and the inducement must be causally linked. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 404-405.)
Defendant’s argument centers on representations from the detectives during the interviews on October 23 and 24. On October 23, Detective Tyndale informed defendant that she failed the polygraph examination, and he was having a hard time with whether she intentionally caused the child’s death. He told her that people would forgive a mistake, but if someone made a mistake and was not honest about it, “people aren’t as forgiving.” He also said: “I don’t think you’re someone who would intentionally kill a child.... [¶]... [¶] But if there was something that happened that was an accident, ... [¶]... [¶] that’s what you need to tell me. ‘Cause otherwise the detective[’]s gonna think you did do something on purpose.”
Later, Detective Tyndale told defendant he would like to design a polygraph test she could pass, and he would have to explain to Detective Jason why she did not pass the polygraph. Detective Tyndale repeatedly asked defendant if the child’s death was an accident, and continued: “When you tell me what it was, that’s how I’m gonna design the polygraph test.... [¶]... [¶] Because if it’s an accident, that’s what people understand. Especially when you’re sorry for it. When you don’t tell the truth, people don’t believe you’re sorry.”
Detective Tyndale continued this line of questioning, assuring defendant he believed the killing was accidental, and telling her: “if you tell me the truth, I promise you’re gonna pass the test. If it was an accident, I can show that. But you gotta be honest with me about it.” He repeatedly promised defendant that if she told the truth, he would develop a test she could pass. He also told defendant, “You know, what kind of person would kill a small child on purpose? Are you that kind of person?”
Detective Tyndale then told defendant he knew she was “worried” and “scared” as some day “12 people sitting in a jury” would be looking at her, wondering whether she did it on purpose or it was an accident. He reiterated that it would be important for him to “walk out of here and be able to go up to Detective Jason and say, she’s telling me the truth? She did it, but she didn’t do it on purpose. It was an accident.” As the interview wound down, he told defendant she took on more children than she could handle, and “I can help you show that it was an accident.” By the end of the interview, defendant admitted she accidentally killed the child.
The following day, Detective Jason asked defendant if she had put her hand on the child’s mouth to stop her from breathing. Defendant said “No, ” and Detective Jason replied that defendant had come a long way since the previous interview, and “you know, getting this off your chest. You got to be feeling better about that.”
Detective Jason told defendant he understood that defendant knew how to take care of a child. Detective Jason told defendant she “had to have done something.” He reiterated several times that he thought it was an accident. Later, Detective Jason asked defendant if she put her hand over the child’s mouth. After she gave an inaudible response, Detective Jason told defendant she was not being honest with him, and she would feel better if she told the truth. After equivocating on whether she had put her hand over the child’s mouth, defendant admitted doing so, and stated that she kept her hand over the child’s mouth until she stopped crying.
Defendant argues her incriminating statements were coerced by the detectives’ repeated statements that she was guilty, telling her the only question was whether the killing was intentional or accidental, and the only way she could save herself was by “‘passing the polygraph’” and saying it was an accident. Citing People v. Esqueda (1993) 17 Cal.App.4th 1450 (Esqueda), she asserts the detectives could not repeatedly say she would be better off by admitting the killing was an accident.
The totality of the circumstances in Esqueda presents a stark contrast to the detectives’ conduct here. Esqueda, who had been drinking and was hysterical when the marathon questioning began, stated repeatedly that he did not want to talk. (Esqueda, supra, 17 Cal.App.4th at pp. 1485-1486.) In spite of his protestations, his tormentors (as the appellate court characterized them) questioned him on and off for 11 and one-half hours beginning at 10:00 p.m. He was emotionally distraught and exhausted. (Ibid.) Yet they implied they would not stop until he told them what they wanted to hear. (Ibid.)
The Court of Appeal described how the interrogators badgered the defendant to parrot back what they told him: It wrote: “They told him what they wanted when he asked what they wanted him to say. At first they said they wanted the truth. Later, they said they wanted to hear only who killed [the victim] and suggested it would be better for him if it was an accident. They said they knew it was him and that it was only a matter of intentional or accidental killing. They told him his only way out was to say it was an accident. They implied by so saying he would not have to go to prison and would be out with his children.” (Esqueda, supra, 17 Cal.App.4th at pp. 1485-1486.) In addition, officers kept him under constant supervision, prevented him from seeing his dying wife and comforting his children, threatened to continue questioning him until he confessed, fabricated evidence implicating defendant, berated him for betraying his manhood, religion and Hispanic heritage, and refused his requests to end the questioning. (Id. at pp. 1485-1487.)
Defendant’s interrogation is not remotely similar to what happened in Esqueda. Defendant was questioned over three days, and the first two interviews took place at her home. While the remaining interrogations were conducted at the police station, she was free to go home until the questioning on October 24, 2007, when she was given Miranda warnings. The detectives never told defendant she would receive a lesser sentence if she told them what they wanted to hear. Although the detectives first told her they believed it was an accident, and later that she had smothered the child, they never told defendant she would suffer adverse consequences unless she gave a specific answer.
This case is also distinguished from Esqueda by the absence of any Miranda violation. In Esqueda, defendant was subjected to hours of custodial interrogation without Miranda warnings, after which “the police, using lies, trickery and threats, coerced a ‘waiver’ of Esqueda’s Miranda rights.” (Esqueda, supra, 17 Cal.App.4th at p. 1484.) Esqueda involved egregious misconduct by the police: “What followed is so reminiscent of the police conduct in the late 1950’s that led the United States Supreme Court in Spano v. New York[ (1959)] 360 U.S. 315 [3 L.Ed.2d 1265], to strike down a confession as to cause wonder that we have come so far since then, yet progressed so little.” (Esqueda, at pp. 1484-1485.) While a confession can be involuntary under less extreme circumstances, nothing about this case suggests any similarity to what took place in Esqueda.
Defendant was not subjected to excessively long interrogations, and the police complied with the Miranda requirements. While the detectives had no doubt she was guilty and intended to get her to confess, her incriminating admissions were the product of her free will.
III
The Corpus Delicti
Defendant asserts there was insufficient evidence to establish the corpus delicti for either offense. Not so.
“The corpus delicti of a crime consists of two elements, the fact of the injury, loss or harm, and the existence of a criminal agency as its cause. [Citation.] It must be proved independently of the extrajudicial statements of the defendant. [Citation.]” (People v. Hamilton (1989) 48 Cal.3d 1142, 1175.) Proof of the corpus delicti may be circumstantial and need only be a slight, or a prima facie showing, “‘“permitting the reasonable inference that a crime was committed.”’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 986.)
The pathologist testified he did not know for sure the cause of Tamaihya’s death, but the bruises around her face led him to conclude the cause of death, while undetermined, was “Probable asphyxia by smothering.” This uncontradicted testimony provided the corpus delicti for both crimes.
IV
Cruel And Unusual Punishment
Defendant contends her sentence of 25 years to life for assault on a child with force likely to produce great bodily injury resulting in death was cruel and unusual punishment under the United States and California Constitutions. Not so.
Initially, we hold defendant forfeited her claim by failing to raise it in the trial court. In People v. Norman (2003) 109 Cal.App.4th 221 (Norman), we held a contention that a punishment is disproportionate under the state or federal Constitutions is fact specific and must be raised in the trial court. (Id. at p. 229.) We reach the same conclusion in finding forfeiture here.
Defendant’s claim also fails on the merits. Norman presented very similar facts to the instant case -- the defendant, who killed his six-year-old son, was convicted of second degree murder and violating Penal Code section 273ab and sentenced to 25 years to life. (Norman, supra, 109 Cal.App.4th at p. 224.) We found the sentence did not violate the Eighth Amendment, as the United States Supreme Court has upheld life sentences for nonviolent drug offenses. (Norman, at p. 230, citing Harmelin v. Michigan (1991) 501 U.S. 957 [115 L.Ed.2d 836]; Rummel v. Estelle (1980) 445 U.S. 263 [63 L.Ed.2d 382].) Applying the three-part test of In re Lynch (1972) 8 Cal.3d 410, 425-427, we concluded the punishment was not cruel or unusual under the California Constitution. (Norman, at pp. 230-232.)
Defendant presents no reason to reach a different result here. If the Eighth Amendment permits a sentence of life without possibility parole for a nonviolent drug offense (see Harmelin, supra, 501 U.S. at pp. 961, 994-995 [115 L.Ed.2d at pp. 843, 864-865], then “a sentence of 25 years to life is not cruel and unusual for the death of a child under age eight.” (Norman, at p. 230.)
In Lynch, the California Supreme Court held “a punishment may violate article I, [section 17 of the California Constitution] if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch, supra, 8 Cal.3d at p. 424.) We consider three areas of focus for assessing disproportionality: (1) an examination of the nature of the offense and the offender; (2) a comparison of the sentence with punishments for more serious offenses in the same jurisdiction; and (3) a comparison of the sentence with punishments for the same offense in other jurisdictions. (Id. at pp. 425-427.)
Defendant, who has no criminal record, is unlike the violent recidivist defendant in Norman. (Norman, supra, 109 Cal.App.4th at p. 230.) She also argues CPS did not provide her with relevant medical information or a Medi-Cal card when placing the child with her, and CPS never helped her with the burden of caring for the child.
Norman did not turn on the defendant’s criminal record. “A life sentence for a vicious murder of a small child cannot be said to be disproportionate whether it was premeditated or not. Despite defendant’s repeated requests to view [Penal Code] section 273ab in the abstract, he ignores the fact that this terrible child homicide was a second degree murder. He cannot argue he did not possess malice because the jury found he did so.” (Norman, supra, 109 Cal.App.4th at p. 230.)
Here defendant was convicted of the second degree murder of her 18-month-old foster child. Expert testimony established defendant would have had to hold her hand over the child’s mouth for at least three minutes in order to asphyxiate her. Applying Norman, we find defendant failed to satisfy the first prong of Lynch.
As to the second and third prongs of Lynch, defendant engages in no more than cursory disagreement with our holding in Norman. We stated in Norman that a defendant convicted of violating both Penal Code section 273ab and second degree murder “cannot seriously argue that his lifetime maximum sentence for [Penal Code] section 273ab is disproportionate to other California crimes, because he also has a lifetime maximum sentence for second degree murder.” (Norman, supra, 109 Cal.App.4th at p. 231.) Regarding the third prong of Lynch, we determined in Norman that no other jurisdiction had a statute for child homicide including the elements that “the perpetrator had to be a caregiver, the crime required general criminal intent, and the child victim had to be under age eight. In any event, there is nothing to indicate to us that the California statute is grossly out of step with similar statutes in the rest of the country, particularly when a defendant has also been convicted of murder.” (Norman, supra, 109 Cal.App.4th at pp. 231-232.)
Defendant gives us no reason to reject our holding in Norman. We conclude her sentence is neither cruel nor unusual.
V
Cumulative Error
Defendant contends cumulative error warrants reversal. As she has failed to identify any error, we reject her contention.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J., HULL, J.