Carolyn D. Phillips, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CMS4867)
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Carolyn D. Phillips, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Meehan, J.
Appellant challenges her conviction upon the sole ground that trial counsel was ineffective for failing to object to the admission into evidence of statements she made during a police interview. Appellant argues that her statements were inadmissible because she was not given her rights pursuant to Miranda prior to the interview. For the reasons set forth below, we affirm.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
On October 8, 2015, the Kings County District Attorney filed a complaint against appellant charging her with felony child endangerment (Pen. Code, § 273a, subd. (a); count 1) and misdemeanor unlawful use and being under the influence of a controlled substance, methamphetamine (Health & Saf. Code, § 11550, subd. (a); count 2).
All further references are to the Penal Code, unless otherwise indicated. --------
On March 23, 2016, at a pretrial conference, the prosecution requested that the videotaped interview of appellant be played for the jury and a transcript be provided for the jury's use. The deputy district attorney initially informed the court that appellant had been "properly Mirandized" before the interview. After a brief conversation, the deputy district attorney stated, "I was confused about the Miranda. I believe prior to the interview, Detective [Richard] Pontecorvo made it clear that at that time she was not under arrest and she was free to leave if she chose." The defense did not object to the admission of the video and transcript into evidence.
The trial began on March 23, 2016. Prior to the close of the prosecution's case, appellant pled guilty to count 2. On March 24, 2016, the jury returned a verdict of guilty as to count 1.
Appellant was sentenced on May 5, 2016. The court denied probation and sentenced appellant to the upper term of six years on count 1, child endangerment (§ 273a, subd. (a)). Appellant was also ordered to submit to DNA profiling pursuant to section 296, subdivision (a)(1). The court imposed restitution, fines and assessments.
Appellant was also ordered to register as a narcotics offender pursuant to Health and Safety Code section 11590 for five years after parole, and to provide blood and saliva samples, along with thumb and palm prints for DNA archiving. (§ 296, subd. (a)(1).) The court awarded appellant custody credits and good and work time credits. Following release from prison, appellant would be placed on postrelease community supervision (PRCS) for a period of up to three years. Each violation of the PCRS would result in six months of custody.
On May 20, 2016, appellant filed a notice of appeal.
STATEMENT OF FACTS
Appellant lived in a shed in her mother's backyard. Appellant's son, Orion, lived with his father, Emanuel Salazar, and his grandmother, Ysidra Jung.
On October 3, 2015, at approximately 10:00 a.m., Jung dropped off Orion, then age six, at appellant's residence for a supervised visit. Jung testified that Orion was not behaving strangely at that time.
Appellant testified that on October 4, 2015, between 3:30 p.m. and 3:40 p.m., she took Orion into the shed where she lived.
Prior to Orion testifying, the trial court questioned Orion and determined he was competent to testify. Orion testified that when he was inside the shed he began watching a movie while appellant put on makeup. Appellant gave him a previously opened bottle of water to drink. When Orion drank the water, he testified the water tasted "nasty," made his throat hurt "really bad" like it was burning, and that he felt sick and threw up. Orion testified that he did not eat or drink anything else when he was in the shed. When asked how long he watched the movie, Orion said inconsistently, "[a] hundred hours" and "[f]ive hours." Orion also testified he was only in the shed for about five minutes.
On October 4, 2015, Jung picked up Orion a "little bit after 4:00 p.m." Jung testified that as soon as Orion entered her vehicle, she observed him being "fidgety, his talking—his speech was really quick...." Jung asked Orion if he was okay. Orion responded that he had drunk five sodas. Jung accepted Orion's explanation and proceeded to Walmart, which was approximately five minutes away.
Jung testified that when they arrived at Walmart, she observed the following behaviors in Orion: "He continued to talk and he was very fidgety and did not stop and just smacking his lips and his eyes were like open and I was like are you okay and—I was thinking it was just he drank five sodas. So at that time—and he was poking at his skin and then he peeled his nail back." As Orion was peeling his nail completely off, "he didn't cry or anything."
Jung took Orion to the Adventist Medical Center in Hanford and arrived about an hour after she picked him up from appellant's residence. Dr. Mark Hoffman was on duty in the emergency room. Dr. Hoffman testified that he examined Orion between 6:30 p.m. and 8:00 p.m. Over the years he had observed "multiple, thousands" of patients exhibiting symptoms of methamphetamine use. Dr. Hoffman testified that Orion's symptoms were consistent with someone being under the influence of methamphetamine.
A urine sample was taken from Orion at approximately 7:00 p.m., which tested positive for methamphetamine. A blood test was also administered but did not show any level of methamphetamine.
Officer Brian Scandura was dispatched to the Adventist Medical Center at approximately 9:30 p.m. on the evening of October 4, 2015, where he observed and recorded with his body camera Orion displaying symptoms of methamphetamine use. Scandura had been trained to recognize the symptoms of methamphetamine use. The video from Scandura's body camera was played for the jury.
Orion was transferred to Valley Children's Hospital because Dr. Hoffman testified that Orion's methamphetamine intoxication "would last at least a couple of days."
At approximately 11:00 p.m., Scandura went to appellant's house and was told by appellant's mother that appellant had left the residence about 3:00 p.m. that afternoon and she did not know where appellant had gone. Scandura was allowed to view the inside of the shed and did not recall seeing any water bottles or methamphetamine. Appellant's friends, Randolph Mitchell and Jessica Cano, were sleeping in a loft in the shed.
Dr. Tiffany Osburn testified that she was a pediatric hospitalist at Valley Children's Hospital. She examined Orion in the "middle of midmorning hours" on October 5, 2015. Dr. Osburn testified that Orion's symptoms were consistent with methamphetamine intoxication. She also testified that such intoxication could cause a six-year-old boy to sustain "brain damage, death, they can have arrhythmias from the high heart rate that it causes, they can have muscle breakdown that leads to injury to the kidneys, so a lot of different things."
Two days after Orion had been transferred to Valley Children's Hospital, Hanford Police Detective Richard Pontecorvo interviewed him in the hospital. The interview was tape-recorded and the recording was entered into evidence and played for the jury. Orion's responses to the officer's questions mirrored his testimony: he drank some water from a bottle his mother had given him while they were in her shed, the water tasted salty, made his mouth hot, and made him feel sick.
Appellant testified that she started living in the shed at the end of May 2015. She admitted that she had been a methamphetamine addict since 2013 and used the drug "every couple hours" on a daily basis. She testified she did not have to buy her drugs because her friends provided them to her for free. She testified that the only place she kept her methamphetamine was in her bra. Appellant testified that her practice was to use up all of the methamphetamine available to her at any particular time. She admitted that her friends would sometimes smoke methamphetamine with her in the shed and sometimes she went to their residences to smoke methamphetamine. Mitchell and Cano had been staying at appellant's shed. She admitted she smoked methamphetamine with them. She testified that neither she nor any of her friends put any methamphetamine in a bottle. Appellant admitted using methamphetamine on October 2, 2015, but denied using again until after Orion's visit ended.
Appellant testified that Orion came into the shed between 3:30 and 3:40 p.m. on October 4, 2015. Appellant denied providing Orion with methamphetamine or a bottle of water. Appellant denied there was anything else within Orion's reach he could have drank. She testified she started playing the movie and before the opening credits were finished, Orion left the shed. She testified that he stayed a total of three to five minutes in the shed.
Orion was picked up by his grandmother at approximately 4:00 p.m. About an hour after Orion left, appellant used methamphetamine. She also admitted that she used methamphetamine the day after the visit.
Appellant testified that she was "picked  up" by police officers "three days after the incident." At the police station, Pontecorvo interviewed her in a room with just the two of them with the door closed. At the beginning of the interview, appellant was advised that she was not under arrest but she was not told that she was free to leave. He did not give appellant any advisements. Pontecorvo did not ask appellant if she wanted to talk with him but rather that he had wanted to talk to her about her son and the visitation.
The interview was recorded and played for the jury. Appellant's statements during the interview were consistent with her testimony. In addition, appellant stated in her interview that her ex-husband, Emanuel, used methamphetamine. The following exchange occurred:
"[APPELLANT]: No. No. No. I swear. I believe—he uses—he used the whole 16 years that we were together and beat the f***out of me every f****** day. And—and that's why I left him, and I don't want to be with him. And that's why he's doing ....
"[DETECTIVE]: And that's why you started—why—that's why you use meth every day, right?
"[APPELLANT]: Yeah. Pretty much. Yeah. Yeah.
"[DETECTIVE]: So you blame it on him?
"[APPELLANT]: Yeah. [Because] he took everything I had. He took my career. He took my—my home, my—everything I have left. [¶] ... [¶]
"[APPELLANT]: ... I've done dope with him. I had done dope with him. "
Appellant described her husband as follows:
"[APPELLANT]: This is b***s*** that you're picking me because I didn't do nothing. I didn't do nothing. I didn't do nothing. This is outrage because Mr. Perfect who's been in prison every year since 2002, and he—and I work my ass off to take care of him and support him and my kids. And then everything that it—that I work so hard for—for him to rip it all away. For him—no. That's b***s***. And now all of a sudden I miss a court date, and he wants to act like he's father of the year. And then he's done nothing wrong. This m*****f***** beat the f*** out of me."
Appellant stated that Emanuel once tried to poison her with antifreeze. Appellant also stated Emanuel tried to choke her on another occasion. She said that Emanuel once put her head through a wall. She further stated that on another occasion Emanuel "stomped" on her leg.
Appellant contends trial counsel was ineffective for failing to make a motion to suppress the video and transcript of appellant's interview with Pontecorvo because she was not Mirandized prior to the interview.
"To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Lewis (1990) 50 Cal.3d 262, 288.)
Appellant is correct that the general rule is that Miranda advisements are necessary before a defendant's incriminatory statements to police can be admitted into evidence. (Miranda, supra, 384 U.S. at p. 479.) Appellant is also correct that in this case Pontecorvo did not advise appellant of her Miranda rights at the beginning of the interview.
Nevertheless, "[r]eviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Zapien (1993) 4 Cal.4th 929, 980.)
" 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' [Citations.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' " (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
In People v. Mendoza Tello (1997) 15 Cal.4th 264 (Mendoza Tello), trial counsel failed to make a motion to suppress evidence pursuant to section 1538.5. On appeal, the defendant argued that failure constituted ineffective assistance of counsel. The Supreme Court rejected that argument, stating:
" 'Because the legality of the search was never challenged or litigated, facts necessary to a determination of that issue are lacking.' [Citation.] The issue at trial was whether [the] defendant possessed cocaine, not whether the deputy acted unlawfully. We have repeatedly stressed 'that "[if] the record on appeal sheds no light on why counsel acted
or failed to act in the manner challenged[,] ... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' " (Mendoza Tello, supra, 15 Cal.4th at p. 266.)
"[I]n general, it is inappropriate for an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorney's course of conduct when the record on appeal does not illuminate the basis for the attorney's challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct." (People v. Wilson (1992) 3 Cal.4th 926, 936.)
Appellant asserts that: "The prosecution admitted that appellant had not been Mirandized prior to or making the statements to the police ...." The citations to the record provided by appellant do not support her assertion that appellant had never been Mirandized prior to the interview with Pontecorvo. This court searched the record for such an admission by the prosecution and found none. The closest the prosecution came to making such an admission consisted of the following. After initially assuring the court that appellant had been Mirandized, the deputy district attorney informed the court: "I was confused about the Miranda. I believe prior to the interview, Detective Pontecorvo made it clear that at that time she was not under arrest and she was free to leave if she chose."
By its literal terms, the above quoted assertion by the prosecution at most impliedly admitted only that Pontecorvo did not Mirandize appellant. However, the record establishes that Pontecorvo met appellant for the first time at the police station.
Appellant later testified:
[APPELLANT]: "I don't really—I remember I—they had picked me up three days after the incident. And yes, I did go—I did use two days before they picked me up."
During the interview, appellant stated that she was sleeping in the shed when the police arrived:
"[APPELLANT]: I was asleep when the police got there because I knew (...INAUDIBLE...)
"[DETECTIVE]: Did you do [methamphetamine] last night then?
"[APPELLANT]: Huh? I got to bed, like, at 1:30 in the morning because my mom and me, we got in an argument and I looked, and I literally got there at, like, 1:30 in the morning and went to sleep. And I—and I got woken up to my friend pulling open—they were trying to pull open my door. And I'm like, 'What the heck?' And open up the door, and they came in running in. That's when my mom and dad, they came running behind and was like, 'Your friend just kicked in the porch.' And I'm like, 'What the heck are you talking about because I didn't—I don't even know.' I was asleep. And then [freaking] they said that they were [going to] call the cops. So they said—they took off. They left. That's all I know and that's...."
At the commencement of the interview, the following exchange occurred:
"[DETECTIVE]: And I guess our officers found you down at your house today?
"[DETECTIVE]: I've been kind of wanting to talk to you, [okay]? [Because] you're not under arrest, [okay]? I need to talk to you about your son and the visitations and all that. [¶] ... [¶]
"[DETECTIVE]: Check this out. I understand that. Um, I just want you to know—I mean that they—they transported you down here. [¶] ... [¶]
"[DETECTIVE]: ... to talk to me about that, okay?"
The above quoted testimony indicates that the record is deficient regarding the circumstances surrounding the police finding appellant in the shed and taking her to her interview with Pontecorvo. Appellant's testimony, her statement during the interview quoted above, and Pontecorvo's initial statements at the interview together establish that she was asleep in the shed at the time police, other than Pontecorvo, first found her and took her to the police station where she was interviewed. In her opening brief, appellant admits that she "had not agreed to an interview at the station, or voluntarily traveled to the police station to be interviewed." Whether those other officers Mirandized appellant and whether she waived her Miranda rights prior to the interview cannot be determined from the appellate record. If appellant received Miranda advisements from another officer prior to the interview with Pontecorvo and waived those rights, the waiver would still have been in effect at the time of the interview. (People v. Williams (2010) 49 Cal.4th 405, 434-435 [readvisement of Miranda warnings was not required at second interrogation conducted 40 hours after the first in same location and by same officer involved in previous questioning]; People v. Booker (1977) 69 Cal.App.3d 654, 665 ["one warning of Fifth Amendment rights under Miranda v. Arizona can suffice to establish the voluntariness of several subsequent interrogations"]; People v. Johnson (1973) 32 Cal.App.3d 988, 997 [Miranda warning need not be repeated]; 5 Witkin, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 161.)
We conclude that the appellate record does not negate the possibility that trial counsel made a reasonable tactical decision to not make a motion to suppress appellant's incriminatory statements made during the interview because she had been Mirandized prior to the interview with Pontecorvo.
Even if the record did establish that appellant was not Mirandized at any point until the interview was completed, there is another possible tactical reason for trial counsel to not make an objection to the introduction of the interview video and transcript.
Appellant asserts that "[f]acts not otherwise directly ascertainable were admitted by appellant during her interrogation." For example:
"- she had smoked methamphetamine [on] October 2, 2015, the day before Orion's visit (citation);
"- she and her friends smoked methamphetamine in her shed (citation);
"- when she is in the shed she has methamphetamine (citation);
"- she admitted that she used methamphetamine 'pretty much' every day (citation);
"- Orion had been inside her shed shortly before Orion's grandmother picked him up (citation);
"- she admitted that she has kept methamphetamine in the shed (citation);
"- she admitted she could not think straight (citation);
"- [appellant] was under the influence when she was interrogated by the police [on] October 7, 2015 (citation)."
However, at her trial appellant testified as follows:
When asked the last time she used methamphetamine before Orion's visit, she answered "the day before they came over because when they were there I didn't use."
When asked whether she and the friends who were staying with her smoked methamphetamine in the shed, she answered "yes."
Appellant admitted at other points in her testimony that she smoked methamphetamine with friends in the shed.
When asked how often appellant smoked methamphetamine, she answered "We smoke it every couple hours." When asked whether that was on a daily basis, she answered "Yeah."
Appellant testified that Orion came into the shed at about 3:30 to 3:40 p.m., stayed between three to five minutes and was picked up by Jung at 4:10 p.m.
The testimony summarized above refutes most of appellant's claims that the interview contained inculpatory evidence that was not presented at trial. Appellant's testimony admitted the basic information she provided in the interview. In fact, her testimony was even more inculpatory when she testified that she smoked methamphetamine on a daily basis and "every couple hours." What appellant did not admit in her testimony consisted merely of specific instances out of her extensive drug usage and the effects of those instances on her mental state at those times. The admissions appellant made during the interview were far less damaging to her case than appellant's testimony.
Appellant also argues, "her behavior captured on the video-tape of the interview, showed her as an irresponsible, self-centered drug user whose outburst had more to do with her own well-being than that of her six-year-old." However, appellant's admissions during the interview provided an explanation for her behaviors, statements and demeanor—those admissions informed the jury that during the interview she was under the influence and unable to think clearly. Moreover, as noted above, appellant's testimony that she used methamphetamine on a daily basis and every couple of hours constituted to some extent an explanation for any erratic behavior she might have demonstrated during the interview.
We conclude that counsel could have reasonably decided that allowing the video and transcript of the interview to be presented to the jury without objection would have provided little or no inculpatory information that was not apparent from appellant's trial testimony.
If the video recording and transcript of appellant's statements to Pontecorvo had not been admitted into evidence, the jury would have been left with appellant's denials that were contradicted by otherwise overwhelming evidence of her guilt. Jung testified that as soon as Orion entered her vehicle, he was "fidgety, his talking—his speech was really quick." After arriving at the Walmart store, which was approximately five minutes away, Jung observed Orion peel off his fingernail and "he didn't cry or anything." She took Orion to Adventist Medical Center, where he was examined by Dr. Hoffman who had observed "multiple, thousands" of patients exhibiting methamphetamine intoxication. Dr. Hoffman testified that Orion's symptoms were consistent with someone being under the influence of methamphetamine. A urine sample taken from Orion tested positive for methamphetamine. At Adventist Medical Center, Scandura, who had been trained to recognize the symptoms of methamphetamine use, observed Orion displaying those symptoms and recorded them with his body camera. The video from the body camera was played for the jury. After Orion was transferred to Valley Children's Hospital, he was examined by Dr. Osborn, who testified that Orion symptoms were consistent with methamphetamine intoxication. This evidence established that as soon as Orion entered Jung's car shortly after visiting appellant, he was under the influence of methamphetamine. The only evidence that was inconsistent with this conclusion, besides appellant's denials, was a blood sample taken from Orion at Adventist Medical Center that did not show any level of methamphetamine. However, the jury impliedly did not credit the accuracy of that test result.
Two days after Orion was transferred to Valley Children's Hospital, he was interviewed by Pontecorvo. Appellant concedes that "Orion's responses to the officer's questions mirrored his testimony: he drank some water from a bottle his mother had given him while they were in her shed, the water tasted salty, made his mouth hot, and made him feel sick." Orion's statements were recorded and were played to the jury. Thus, Orion's testimony at trial was corroborated by the statements he made two days after Jung picked him up at appellant's residence.
By not objecting to the video, counsel allowed information to be presented to the jury about Orion's father, Emanuel, that was not presented in appellant's testimony, and thus did not allow appellant to be cross-examined on that subject. In the interview, appellant said Emanuel used methamphetamine "the whole 16 years that [they] were together," that she "had done dope with him," he beat her "every f****** day," and he had "been in prison every year since 2002." During the interview, appellant stated that on separate occasions Emanuel tried to poison her with antifreeze, choked her, put her head through a wall, and stomped on her leg. She also stated that Emanuel "took everything I had. He took my career. He took my, my home, my—everything I have left."
Trial counsel might have hoped that the information about Emanuel would at least distract the jury from the otherwise overwhelming case against appellant, create sympathy for appellant and possibly suggest that the source of the methamphetamine ingested by Orion might have come from an amount Emanuel left in Jung's car. While this information about Emanuel would not have constituted a legal defense or substantially increased the credibility of appellant's denial of responsibility for Orion's methamphetamine intoxication, given the otherwise overwhelming strength of the prosecution's case, appellant does not even suggest any other tactics that might have benefited her.
In light of the " 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' " and the " 'great deference' " that appellate courts are required to give to counsel's tactical decisions (People v. Weaver, supra, 26 Cal.4th at p. 925), we conclude that the record in this case does not establish that "there simply could be no satisfactory explanation" why trial counsel did not object to the introduction of the videotape and transcript of appellant's interview with Pontecorvo. (Mendoza Tello, supra, 15 Cal.4th at p. 266.)
Even assuming that the appellate record established that counsel did not have any legitimate tactical reason for not objecting to the admission into evidence of appellant's statements to Pontecorvo, "[g]enerally, ... prejudice must be affirmatively proved." (People v. Ledesma (1987) 43 Cal.3d 171, 217.) To demonstrate prejudice, appellant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at pp. 217-218; People v. Williams (1997) 16 Cal.4th 153, 215.)
It is appellant's burden to show that had her admissions during the interview not been entered into evidence, a different result was reasonably probable. For the reasons stated above, we conclude that even if trial counsel had successfully objected to the introduction of appellant's statements during the interview, a different result was not reasonably probable.
In light of the above discussion and conclusions, it is unnecessary to address appellant's other arguments, such as whether the interview was conducted during a custodial interrogation after the investigation had focused on appellant.
The judgment is affirmed.