People v. Delgado

• Decision Date: 03 June 1993
• Docket Number: No. S027060,S027060
• Citation: 19 Cal.Rptr.2d 529,851 P.2d 811,5 Cal.4th 312
• Court: California Supreme Court
• Parties: , 851 P.2d 811 The PEOPLE, Plaintiff and Respondent, v. Steven DELGADO, Defendant and Appellant.

Page 529

19 Cal.Rptr.2d 529

5 Cal.4th 312, 851 P.2d 811

The PEOPLE, Plaintiff and Respondent, v. Steven DELGADO, Defendant and Appellant.

No. S027060.

Supreme Court of California In Bank.

June 3, 1993.

[5 Cal.4th 315] Frederick L. McBride, Orange, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield and Gary W. Schons, Asst. Attys. Gen., Louis R. Hanoian, Garrett Beaumont and Keith I. Motley, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

ARABIAN, Justice.

We determine whether the trial court erred in denying defendant Steven Delgado's motion for a new trial based on a witness's posttrial declaration, and whether the trial court engaged in a prejudicial ex parte communication with the jury. The Court of Appeal found error on both of these bases, and reversed defendant's conviction for second degree murder and misdemeanor child abuse. We disagree and reverse the Court of Appeal.

I. FACTS

A. Prosecution Case

1. Background

On September 26, 1989, at 7:40 a.m., Elizabeth Ruiz (Ruiz) called "911" to report that she had awakened to find her 11-month-old daughter, Amanda, dead. Sobbing hysterically, Ruiz described her daughter as cold and stiff, and her face black and blue. She did not know what had happened to her. Ruiz also reported an injury to her five-year-old son, Johnnie, and expressed concern that he could not tell her how he was injured. The responding paramedic confirmed that Amanda was dead, with multiple bruising to her face and belly, and dried and caked blood covering her face. Johnnie had a black eye, swollen lips, and blood around the gum line of his teeth and on one ear.

Amanda's autopsy revealed two major skull fractures. Her brain was swollen and showed signs of hemorrhage. Her abdomen was filled with approximately one pint of blood due to laceration of her mesentery, the fatty tissue that anchors the intestinal tract to the backbone, and her liver. There was also bleeding noted in the back of her abdominal and chest walls. She suffered multiple external bruises on her forehead, left cheek area, and right ear, and internal bruises in the back of her head, her back, and her abdominal wall. She had an abrasion on the left side of her lip, and her frenulum, the structure that holds the upper lip to the gums, was split. Death was attributed to both her massive abdominal bleeding and the swelling of her brain.

The injuries to Amanda's abdominal area were caused by a blunt instrument such as knuckles. The injuries to her head were consistent with being thrown against a wall. The injuries to the mouth were consistent with blunt force trauma caused by a human hand. An analysis of the inflammatory reactions of Amanda's tissue indicated she most likely lived for about eight hours after the assault. However, the time could have been anywhere between six and twenty-four hours.

2. Ruiz's Testimony

Ruiz gave conflicting accounts of the events on September 25 and 26, 1989, to the police, in her testimony at the preliminary hearing, at trial, and in her declaration submitted at the hearing on the motion for new trial. On the day Amanda's body was discovered, she told police she had "played no part in Amanda's death." However, her subsequent accounts increasingly tended to implicate either herself or her estranged husband, Manuel Ortiz, and exculpate defendant, demonstrating what defense counsel characterized in closing argument as "her apparent unwillingness to see Steve Delgado convicted of murder."

a. Trial Testimony

Ruiz lived in a one-bedroom apartment with Amanda and Johnnie. She was separated from her husband, Ortiz, and was dating defendant.

On September 25, 1989, Ruiz fed Amanda and Johnnie dinner at approximately 8 p.m. While the children ate, Ruiz took two sleeping pills. ¹ She had not eaten anything all day.

At trial, but not at the preliminary hearing or in her statements to police, Ruiz testified that while the children were eating dinner, she remembered picking herself up off the living room floor. She did not know how long she had been there, and did not remember lying down.

Johnnie went to bed at 8:30 p.m., and Amanda at 9 p.m. Ruiz fell asleep with the children on the bed from approximately 9 to 9:10 p.m.

Shortly thereafter, Ruiz received a call from Ortiz, who wanted to see the children. Ruiz said that it was too late and they were asleep. Ortiz then appeared at Ruiz's front door, and repeated his desire to see the children. ² Ruiz and Ortiz entered the bedroom, looked at the children, and began to argue. They left the bedroom, leaving the door open. Ortiz grabbed Ruiz's arm, and began yelling at her in the hallway. He demanded to know why she was wearing a shirt that said "Delgado." Ruiz fled the apartment for approximately one-half hour because she was afraid Ortiz was going to beat her again as he done previously. Ortiz remained in the apartment, but she did not think that Ortiz had hurt the children, and did not check on the children after he left.

When she returned to the apartment, Ruiz noticed that the frames surrounding certain photographs of her and defendant, and of her and her children, had been broken and strewn about. In response to questions by the district attorney, Ruiz conceded that although she felt so frightened of Ortiz on Monday night that she fled the apartment, she had still been planning to take Tuesday off from work so he could fix her car and visit with their children.

Ruiz then fell asleep in the living room until 10:45 p.m., when she received a collect call from defendant. From the time she returned to the apartment until the time she received the telephone call, she never heard Amanda cry. Defendant, who testified he had spent the evening playing softball and then drinking beer with his teammates, arrived soon after with a pizza. Ruiz slept from the time of the defendant's first call to the time of his second call, asking her to come downstairs and let him in.

At trial, but not at the preliminary hearing or in her statements to police, Ruiz recalled two "cloudy, fuzzy" periods that looked like "dreams" during the evening prior to defendant's arrival. Ruiz testified that from the time she put Amanda to bed until she received defendant's first telephone call was "all fuzzy to me," and "everything [was] just confused." On cross-examination by defense counsel, Ruiz denied that these "unreal feelings" were something she thought of recently to try to protect defendant, and claimed that she had known about her lack of memory on the evening in question from the time she first visited the police station the day after her daughter's attack.

At trial, but not in her statements to the police or in her preliminary hearing testimony, Ruiz testified that she now remembered diving into the bed in which Amanda was sleeping sometime prior to receiving defendant's first telephone call. Ruiz was not sure whether the incident occurred before or after Ortiz's visit.

On September 26, Ruiz told police that before she went down to let defendant in, she got her shoes from the bedroom, turned the light on, and saw Amanda blink and turn away from the light. She then covered the children up before going downstairs. She claimed not to recall these statements at trial.

Ruiz and defendant sat talking in his truck for approximately 10 to 15 minutes. Ruiz then drove to the store to get soda, and defendant took the pizza to Ruiz's apartment alone. When Ruiz returned approximately 10 to 15 minutes later, she noticed nothing unusual in defendant's demeanor. She did notice a yellow hairband with two plastic balls, which Amanda had been wearing all evening, in the living room. Ruiz initially told police she had not removed the hairband from Amanda, and gave it to the officers. At trial, however, Ruiz testified that she now remembered removing the hairband.

Ruiz and defendant then entered the bedroom to get her cat from underneath the covers. She observed that the children were covered, and were both located at the head of the bed. Either Ruiz or defendant commented about how cute it was that Johnnie had his arm around Amanda.

Ruiz subsequently noticed a spot of blood on defendant's baseball shirt. He told her he had been hit in the nose with a baseball.

Ruiz asked defendant if Amanda had awakened while she was gone. He said yes, and that he had picked her up, and sung her to sleep with a lullaby. Ruiz and defendant ate some pizza and had sexual intercourse. At some point Ruiz left the apartment for approximately five minutes to retrieve some of defendant's bills from his truck. Ruiz and defendant spent the remainder of the night in the living room, during which time Ruiz did not hear either child cry.

The next morning, Ruiz went into the bedroom, lay down with her children, and fell back asleep. She observed that Amanda was now lying in the middle of the bed, and Johnnie at the head of the bed. She noticed no injuries to either child. Later, defendant looked in the bedroom and said that he was leaving. Ruiz walked him to the living room, and returned to bed.

Ruiz rose for the day at approximately 7:30 a.m. When she returned to the bedroom to help Johnnie get ready for school, she noticed that he had a bloody mouth. He told her that "bad men came through the window." He also said "he fell down." She checked on Amanda, and found her body cold and stiff. She called defendant, and then called "911."

In addition to the above, Ruiz further attempted to implicate herself and exonerate defendant with certain testimony. For example, Ruiz testified that within a few weeks of Amanda's death, she expressed concern to Elizabeth Drysdale, a therapist she had begun to see as a result of custody proceedings regarding Johnnie, that she could not remember certain things from the night her daughter was killed. The jury was also informed that Johnnie was no longer living with his mother.

Moreover, it...