People v. Atkins

• Decision Date: 14 November 1975
• Docket Number: Cr. 8033
• Citation: 53 Cal.App.3d 348,125 Cal.Rptr. 855
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Carleen Marie ATKINS and Joseph Michael Vlot, defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 855

125 Cal.Rptr. 855

53 Cal.App.3d 348

The PEOPLE of the State of California, Plaintiff and Respondent, v. Carleen Marie ATKINS and Joseph Michael Vlot, defendants and Appellants.

Cr. 8033.

Court of Appeal, Third District, California.

Nov. 14, 1975.

Evelle J. Younger, Atty. Gen., by Gregory W. Baugher, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

Marsha B. Shanle, Santa Cruz, for defendant and appellant Vlot.

Wallace Smith, Sacramento, for defendant and appellant Atkins.

REGAN, Associate Justice.

Defendants were jointly tried by jury on an indictment which charged defendant Vlot with murder (Pen.Code, § 187) and with inflicting corporal punishment or injury on a child (Pen.Code, § 273d), and which charged defendant Atkins with manslaughter (Pen.Code, § 192), inflicting corporal punishment or injury on a child (Pen.Code, § 273d) and endangering the person and health of a child (Pen.Code, § 273a, subd. (1)). The jury convicted Vlot of murder in the second degree and inflicting corporal injury on a child; and it convicted Atkins of involuntary manslaughter, battery (Pen.Code, § 242--a lesser included misdemeanor offense within the corporal punishment felony charge), and endangering the person and health of a child. They appeal.

This case arises from the death of one Kurtis Lee Atkins who died October 3, 1974, at the age of two and one-half years of peritonitis caused by a traumatic perforation of the small bowel. Kurtis was born shortly after the marriage of defendant Atkins to Ronald Atkins, and they separated when Kurtis was about one year old. Defendant Atkins thereafter lived with Kurtis at the homes of relatives and friends for a period of time and in April or May 1974 she began dating defendant, Vlot. In late August or early September, defendant Atkins and Kurtis began living with defendant Vlot. Her sister-in-law, Mrs. Dolce, testified that sometime in May 1974 defendant Atkins told her defendant Vlot had been beating the child. Mrs. Dolce warned defendant Atkins that Vlot could easily kill a little boy by 'working on' (mistreating) him. Mrs. Dolce had seen a cigarette burn, bruises and teethbite bite marks on Kurtis during the early period when defendants Atkins and Vlot first started dating. When Mrs. Dolce questioned defendant Atkins, she replied that she had burned and bitten Kurtis and the bruises were from a fall.

During the month of July 1974, defendant Atkins took the child into the emergency room at the Placer County Hospital for treatment for an injured arm. She explained to medical personnel that she had injured Kurtis' arm by grabbing him when he stated to run away. A doctor and a nurse both observed bruises on the child's face, arms and back. The doctor made notations in his records that Kurtis was a possible battered-child case. The doctor did not then conclude the arm was broken. Later the same month defendant Atkins took Kurtis to a doctor at the DeWitt Center where it was determined he had a broken bone in his arm. The explanation then given by Atkins was that Kurtis had injured his arm about two weeks previously but that two days prior to the visit to DeWitt he had injured it again by getting it caught between his bed and the wall. The doctor's opinion was that the break was about two or three weeks old and had probably been caused by hyperextension of the arm, or bending it the way it shouldn't bend. The doctor at DeWitt also noted bruises.

On August 1, 1974, a garage mechanic who had been working on defendant Atkin's car observed her pull Kurtis (whose arm was still bandaged or splinted) out of the car through a window in such an abrupt or unusual manner as to cause the mechanic to report the incident to persons in the garage office. Later the same day, in response to a report or reports received by the sheriff's office that the child may have been the victim of battering or beating, a deputy sheriff was dispatched to the residence of defendants Atkins and Vlot. The deputy observed Kurtis seated in a car and observed him from the outside. Not seeing any obvious bruises or abrasions, although the child appeared to be frightened and was whimpering, the officer departed after a short conversation with Kurtis' mother. After the officer departed, defendant Atkins' brother, Gene Dolce, went to the residence to see his nephew, Kurtis to 'check him.' He had not seen Kurtis for two or three months. He noticed Kurtis had lost weight, his hair had changed color, he had a 'funny colored' complexion, and had bruises under both eyes in addition to a cast on his arm from wrist to shoulder. He said Kurtis 'didn't look like the same kid . . ..' When Dolce told defendant Atkins she had better start taking care of Kurtis or he would report her to the authorities, she told him she had already been reported. Thereupon defendant Vlot, who was present started using abusive language to Dolce, got a pistol which he held in his hand and ordered Dolce off the premises.

A few times during the summer of 1974, after defendant Atkins had commenced seeing and eventually living with defendant Vlot, one Gwenet Burgard, a long-time friend of defendant Atkins, saw the child and noticed bruises and a couple of black eyes. She also testified that 'his mouth was all swollen like he drank Drano.'

On October 1, 1974, Lola Vlot, mother of defendant Vlot, visited defendant Atkins and Kurtis at their residence and noticed Kurtis had burned feet. Defendant Atkins explained to Mrs. Vlot that Kurtis had been burned in the bathtub the night before but had not been taken to the doctor. At Mrs. Vlot's suggestion they went to the doctor and had the burns treated.

On October 2, 1974, Lola Vlot was baby sitting with Kurtis at her home for about eight hours. He appeared to be tired and his stomach 'seemed hard.' Defendants Picked Kurtis up from Mrs. Vlot's home about 6:30 or 7 p.m. on October 2 and about 20 minutes thereafter they called Mrs. Vlot and asked her to come to the hospital because something had happened to Kurtis.

Kurtis was admitted to Placer Hospital at 7:35 p.m., October 2. He was bluish in color and crying. Kurtis' abdomen was distended and tympanic (resonant or drum-like), which subsequent medical procedures disclosed to be the result of peritonitis due to abdominal injuries. It was the opinion of the surgeon who operated on Kurtis that the repture in the small intestine and split in the omentum (the apron of tissue over the transverse colon), which he attempted to repair, was caused by a sharp blow which squeezed those organs against Kurtis' spine. Both defendants explained to hospital authorities that defendant Vlot had been carrying Kurtis up the steps, dropped him and fell on him just before bringing him to the hospital. Hospital personnel noted a cut or laceration on Kurtis' lip, not of recent origin, blood in his nostrils, a scar on his gum appearing to have been caused by a blow to the face some time ago, and bruises of varying age on other parts of the body.

The observations of the hospital personnel related above were confirmed and concurred in by the pathologist who performed the autopsy after Kurtis' death on October 3, 1974. Also, his opinion was that the injury to the abdomen was not very recent, but was in fact between five and seven days old. He found a contusion or bruise of the head about 48 hours old. the cause of death in the pathologist's opinion was 'peritonitis due to traumatic perforation of the small bowel.' He testified that he believed Kurtis' life could have been saved if he had been operated on within 48 hours of the blow which caused his abdominal injury.

Just before he died, Kurtis told Dr. Henderson, who had operated on him, that defendant Vlot had hit him in the stomach and in the mouth.

Defendant Vlot's mother, Lola, testified that the day after Kurtis' death she had asked him if he had struck the child and he replied that he 'backhanded' him a week before, knocking Kurtis down, and that Kurtis had complained that his stomach hurt.

After arrest of the defendants on October 3, and a waiver of Miranda rights by defendant Vlot, he was questioned by police. Vlot admitted striking Kurtis about a week earlier in his stomach area, causing Kurtis to vomit and his stomach to swell. Vlot said he thought of taking Kurtis to the doctor but since he seemed better the next day he did not do so. He admitted that he was angry because Kurtis had wet his pants and that when he hit Kurtis he realized he had hit him in anger much harder than he should have.

With respect to Kurtis' burned feet, there is a conflict between pretrial statements to the police of the two defendants as to which of them might have been negligently or deliberately responsible for Kurtis having been left unattended in the bathtub. Each admitted being present on the premises when it happened and each claimed to have been the one who pulled him from the scalding water.

Defendant Vlot contends the trial court committed reversible error when it denied his motion for mistrial and for separate trial following Mrs. Dolce' testimony that codefendant Atkins had told her that Vlot had been beating Kurtis. The trial court at first admitted this testimony to show the knowledge of defendant Atkins, but not to be considered by the jury as to defendant Vlot's conduct. However, the trial court had serious reservations and at a subsequent recess expressed concern that the trial should possibly be separated or the statements deleted. The court therefore took the motions under submission but denied them later the same day and later denied a motion for new trial on the same grounds.

We share the trial court's concern with its ruling. The motions were based upon People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265. Aranda held in effect, that if all references to a codefendant are not deleted in an extrajudicial statement made by another codefendant, a severance of the trials must be...