People v. M.S. (In re M.S.)

• Citation: 244 Cal.Rptr.3d 580,32 Cal.App.5th 1177
• Decision Date: 11 March 2019
• Docket Number: 2d Juv. No. B280998
• Court: California Court of Appeals
• Parties: IN RE M.S., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. M.S., Defendant and Appellant.

32 Cal.App.5th 1177

244 Cal.Rptr.3d 580

IN RE M.S., a Person Coming Under the Juvenile Court Law.The People, Plaintiff and Respondent,

v.M.S., Defendant and Appellant.

2d Juv. No. B280998

Court of Appeal, Second District, Division 6, California.

Filed March 11, 2019

As Modified on Denial of Rehearing April 3, 2019

Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.

GILBERT, P. J.

M.S. appeals an order of the juvenile court sustaining the allegations of a Welfare and Institutions Code section 602 petition and declaring her a ward of the court. Among other conclusions, we decide that sufficient evidence exists that M.S. committed second degree murder. ( Pen. Code, §§ 187, subd. (a), 189, 12022, subd. (b)(1) [personal use of deadly weapon (knife) ].)¹

Is M.S. eligible to be considered for referral to a mental health diversion program pursuant to the newly enacted sections 1001.35 and 1001.36?

No. The new mental health diversion law does not apply to juveniles. Even if it did, M.S.’s crime, murder, is excluded. We affirm.

This appeal concerns the tragic death of Baby Boy A. following his home birth to then 15-year-old M.S. Frightened that her parents would learn that she had been pregnant and given birth, M.S. inflicted fatal cuts on A.’s throat, severing his carotid artery and trachea. M.S. thereafter placed his body in a plastic bag and concealed the bag in the bathroom vanity. During police questionings, M.S. initially asserted that the infant was born stillborn but then stated that she accidentally wounded him when she cut the umbilical cord. When confronted with the medical examiner’s findings, however, M.S. finally admitted that she used a kitchen knife to cut the infant’s throat. On appeal, M.S. challenges the juvenile court’s finding of malice, as well as the court’s Fourth and Fifth Amendment evidentiary rulings, among other issues.

FACTUAL AND PROCEDURAL HISTORY

In the morning of January 17, 2016, 15-year-old M.S., her parents, and her siblings appeared at the Marian Medical Center in Santa Maria. M.S. complained of abdominal pain and vaginal bleeding. An examination by physician’s assistant Ashley Bridges revealed an umbilical cord protruding from M.S.’s vagina. M.S. complained that she had been suffering pain and bleeding since the early morning. When she sat on the toilet, she felt the urge "to push." As she did, she felt "a ripping sensation" and a baby emerged. M.S. stated that the baby was not breathing and had no heartbeat.

At Bridges’s request, M.S. held a private conversation with her (M.S.’s) mother. M.S.’s father then returned to the family’s apartment to retrieve the baby’s body. He returned to the hospital shortly thereafter with the trash bag from the apartment bathroom. Hospital personnel examined the contents of the trash bag but did not find the infant’s body.

M.S. informed Bridges that her brother had taken the plastic bag containing the infant’s body and disposed of it. In the presence of his mother, Bridges spoke with M.S.’s brother. He stated that while M.S. was in the bathroom, she asked him to retrieve scissors and a bag. He could not locate scissors, however, and therefore brought her a kitchen knife and a bag. He denied disposing of the bag thereafter.

Bridges then spoke with M.S. again and asked her purposes for scissors or a knife. M.S. responded that she used the knife to cut her clothing. Bridges asked M.S. if she used the knife to cut the umbilical cord. M.S. denied using the knife for that purpose and explained that she pulled the cord to detach it. Bridges continued to question M.S. to determine the whereabouts of the infant’s body. M.S. replied that she may or may not have seen the body and may have flushed it in the toilet. M.S. also denied knowing that she was pregnant. Hospital personnel summoned police officers.

That afternoon, Santa Maria Police Detectives Andrew Brice and Michael McGehee were informed that a woman had given birth and that the infant was missing or dead. After speaking to the hospital nursing staff, the officers visited M.S.’s hospital room, the door to which was open. The detectives spoke with M.S. in a recorded interview; they had "open mind[s]" and were considering "all possibilities," including "a medical event." The detectives wore business suits and, at the time of the interview, a nurse was present. During the interview, M.S. recounted "four different versions" of the birth, before stating that the infant’s body was in a plastic bag in the bathroom vanity. M.S. stated that the infant was stillborn and she may have accidentally inflicted injuries on him while cutting the umbilical cord. The officers requested permission to search the family’s apartment and M.S. consented.

Criminalist technician Crystal Krausse arrived at the hospital to take photographs of M.S., including photographs of her abdomen that revealed two discolored areas. M.S. did not object to the photographs and cooperated in moving her clothing aside. The photographs were taken as M.S. lay in bed and she was not requested to disrobe.

Meanwhile, other Santa Maria police officers had visited the apartment to see if the infant was alive and, if so, to render aid. M.S.’s father gave the officers permission to enter the apartment and signed a consent-to-search form. When an officer thought he saw the body of a baby inside a clear trash bag in the bathroom, he "clos[ed] down the scene" to seek a search warrant. When Detective Brice arrived at the apartment later, he confirmed with M.S.’s father that he consented to a search of his apartment. This conversation was recorded.

Lydia Magdaleno, a criminalist technician for the Santa Maria Crime Lab, visited the apartment in the early evening to take photographs. She discovered a plastic bag containing bloody tissues in the bathroom. On a maroon-colored trash can in the bathroom, Magdaleno saw blood drops and dribbles. She looked inside the bathroom vanity, behind shoes that were stored there. She found a plastic bag that appeared to contain an infant’s body. Magdaleno removed the bag, partially opened it to inspect its contents, and reported her findings to officers.

Meanwhile, Brice returned to the hospital to request consent from M.S. to search a cellular telephone that he found in the family’s apartment. M.S. agreed to a search of the telephone as well as her school laptop computer. She signed a consent-to-search form after Brice reviewed the form with her. M.S. then provided her telephone’s password to Brice.

Santa Barbara Sheriff’s Deputy Chad Biedlinger was dispatched by the coroner’s office to the apartment. He removed the plastic bag containing the infant’s body and placed it on a body bag on the bed. Biedlinger briefly examined and took photographs of the infant’s body. He then placed the body inside the body bag and took it to the coroner’s office.

Detective McGehee later found a straight-edged broccoli knife among articles of clothing in the bathroom. Bloodstains were on the knife handle and blade. A search of the apartment pursuant to a search warrant revealed luminol-activated blood drops on the walls and floor of the bathroom.

On January 19, 2016, Doctor Manuel Montez, the Santa Barbara County forensic pathologist, performed an autopsy on the infant. Montez estimated that the infant was 34 or 35 weeks old and viable at the time of his death. The infant had a seven centimeter cut across his neck that extended four millimeters into his spine, severing his carotid artery and trachea and depleting his blood volume. Montez also opined that the infant had "hesitation marks" across his torso. He concluded that the fatal neck wound may have been caused by two or three strikes. Based upon the hemorrhage at the site of injury and the infant’s aerated lungs, Montez opined that the infant was alive at the time he was fatally wounded. When shown a photograph of the knife recovered in the bathroom, Montez opined that the infant’s mortal injuries could have been caused by that knife. Montez also observed that the umbilical cord had been cleanly cut. Given the nature of the wound, Montez opined that the crime scene would have been bloody, possibly with a spray or mist of blood in the room.

January 20, 2016, Recorded Video Reenactment

At the time police officers served a search warrant for a search of the family’s apartment, they requested that M.S. reenact the occurrences that led to the infant’s death. The request was made in the presence of M.S.’s parents. McGehee informed M.S. that she was "not in any trouble right now," was "free to leave," and did not have to participate. M.S. agreed to participate and used a toy doll to reenact the birth. During the reenactment, she stated that the baby was born stillborn and "wasn’t moving at all." M.S. explained that she used a sawing motion to cut the umbilical cord with a kitchen knife that her brother provided.

January 27, 2016, Police Interview

On January 27, 2016, McGehee and Brice interviewed M.S. in a video-recorded interview. At the inception of the interview, McGehee informed M.S. of her rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. M.S.’s parents were present in a waiting room during the interview. Although her parents were not fluent in the English language, M.S., a high school student, spoke English and answered the detectives’ questions.

Initially, M.S. claimed that the baby was born stillborn ("he hit his head" during birth) and that she used the knife to cut the umbilical cord. She also admitted that she knew that she was pregnant. With continued questioning, M.S. stated that she felt the baby’s heartbeat, saw him breathing, but accidentally cut him. Finally,...