People v. Misquez

• Citation: 313 P.2d 206,152 Cal.App.2d 471
• Decision Date: 15 July 1957
• Docket Number: Cr. 5790
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Pete Gonzales MISQUEZ, Defendant and Appellant.

Page 206

313 P.2d 206

152 Cal.App.2d 471

The PEOPLE of the State of California, Plaintiff and Respondent, v. Pete Gonzales MISQUEZ, Defendant and Appellant.

Cr. 5790.

District Court of Appeal, Second District, Division 3, California.

July 15, 1957.

Gray, Glass, Allen & Ransom, Gardena, for appellant.

Edmund G. Brown, Atty. Gen., Bonnie Lee Hansen, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

Pete Gonzales Misquez was charged by information with the murder of Margaret Ann Rafferty. Trial was to the court, which found him guilty and determined the offense to be murder of the first degree. Penal Code, § 189. Defendant's motion for a new trial was denied and he was sentenced to confinement in the state prison for life. He appeals from the judgment and the order denying him a new trial.

There was evidence of the following facts. Defendant met Mrs. Rafferty in June 1955 and commenced living with her a few months later. In February 1956, they moved to a second story apartment at 7610 Miramonte Boulevard in Los Angeles where they resided together with Mrs. Rafferty's four minor children: Martha, aged 7, David, aged 5, Helen, aged 4, and Margaret Ann, the deceased, who was 2 1/2 years of age. Margaret Ann weighed 30 pounds and had suffered during the winter from whooping cough. She had not fully recovered from her illness by March 1956 and was described by several witnesses as a tired, listless child who was often picked upon and roughly treated by her elder sister Helen. She also bruised easily, but no more than was usual for a girl of her age.

Mrs. Rafferty had a daytime job and was away from the apartment on weekdays from about 7:30 a. m. until after 5 p. m. Defendant began working on the swing-shift in February 1956 and left for work around 3 p. m. During January and February, defendant's sister, a Mrs. Rojas, took care of the Rafferty children at her own home while their mother was at work. She told defendant on Saturday, March 3rd, that she could no longer do so.

In the late morning of the next day, Sunday, March 4th, Mrs. Rafferty's brother paid a visit to his sister's apartment. He saw Margaret Ann sitting on the living-room couch with defendant while the other children were playing inside the apartment. She got up only once while he was there. He saw nothing abnormal about the way she walked and there were no bruises on her body, although she was wearing a dress at the time.

Mrs. Rafferty put Margaret Ann to bed Sunday evening. She saw some bruises on the girl's body but they were the bruises she usually received from playing with the other children. When her mother left for work at 7:30 the next morning, Monday, March 5th, Margaret Ann was asleep on the living-room couch and Mrs. Rafferty did not awaken her. Defendant and the other children were still in the apartment. Sometime during the morning, Mrs. Rafferty was called at work by the school authorities who told her to take Martha home from school because she had measles. Mrs. Rafferty brought Martha home shortly before noon; defendant was somewhere in the apartment and Margaret Ann was playing in the living-room. The child did not seem to be ill and Mrs. Rafferty left after a few minutes, returning soon after 5 p. m. Defendant was not at home when she returned and Margaret Ann was lying on the bed in the bedroom. When she went to awaken her daughter, Margaret Ann was unconcious and appeared to be asleep. Mrs. Rafferty picked her up but was unable to arouse her. She did not examine the child, but promptly called for help. It was established that death occurred at 6:13 that evening.

Dr. Frederick J. Newbarr, the Los Angeles County Coroner's chief autopsy surgeon, qualified as an expert witness. He testified that he performed an autopsy upon Margaret Ann's body the next morning, Tuesday, March 6th. The child's trunk, neck and limbs were covered with reddish discolorations and she had contusions on her lips. There were scratches on her abdomen and her buttocks were also severely discolored. There was a reddish-brown discoloration which entirely circled her scalp. Several photographs showing the condition of Margaret Ann's body at the time of the autopsy were introduced in evidence.

Dr. Newbarr discovered indications of bronchial pneumonia which might have been 48 hours old at the time of death but the disease was not far enough advanced to have been a cause of death. He attributed the child's death to traumatic intracranial hemorrhage and ecchymosis (or hemorrhage) in the mesentery of the mid-abdomen; in other words, (a) a hemorrhage between the dura and the arachnoid, the outer and inner coverings of the brain, extending over both hemispheres and into the base of the brain; (b) a hemorrhage in the apron of tissue which attaches the intestine to the posterior abdominal wall.

The reddish-brown discoloration of the undersurface of the child's scalp indicated to Dr. Newbarr that her head had been suddenly projected against some hard object or that a hard object had suddenly struck her head; the reddish-purple discoloration of her abdominal tissue gave the same indications. The witness was shown a stick which was used by Mrs. Rafferty to dip clothes out of the washing machine; it was about 15 inches long, an inch wide, and 5/16ths of an inch thick. He stated his opinion that a blow from the edge and flat side of the stick, delivered with sufficient force by a grown man, could have precipitated the subdural hemorrhage; a blow from the stick could also have caused the abdominal injuries, particularly if the stick were used in a plunging manner. The latter injuries could also have been produced by blows with a stick or by throwing the child against a steel post. In Dr. Newbarr's opinion it was unlikely that the injuries could have been caused by a fall down a flight of stairs (the Rafferty apartment had two short flights of stairs), because they were produced by a sudden contact; the injury to the child's abdomen might possibly have been caused by a severe kick from a playmate.

Dr. Newbarr was asked to estimate the age of Margaret Ann's injuries at the time of her death. He stated that her head injury could have been 24 hours old, or somewhere between 24 and 48 hours old; it looked older than 6 hours and he could not tell its precise age within the range of 12 to 24 hours. He also stated that the injury to her abdomen was probably not over 24 hours old; it could have been a day old but he did not exclude the possibility that it was inflicted much more recently. He thought that it was older than 3 or 4 hours but that it could have occurred around 3 p. m. on Monday if the child had been forcibly thrown against a steel post at that time.

Charles McGowan, a Los Angeles County sheriff's deputy, was the investigating officer in the case. He testified that at about 8 p. m. on Monday he went to the Firestone Station where defendant and Mrs. Rafferty were in custody. He obtained a key to the apartment and went there with Martha, who pointed out a stick and said: 'This is the stick that Pete beat the little girl with.' McGowan also found a rubber exerciser. Both objects were received in evidence.

While he was in custody, defendant made a statement in the presence of Deputy McGowan and a shorthand reporter. McGowan testified that defendant was not promised any reward or immunity for making the statement, that no force was used or threatened, and that defendant's statement was freely and voluntarily made. The substance of defendant's statement is as follows. He stated that he took Martha to school around 9 a. m. on Monday. When he returned to the apartment he saw that Margaret Ann had wet the living-room couch. He took a stick and struck her three times on the buttocks. She fell on the floor and he told her to get up. When she did not comply he caught her arm, swung her in the air with his left hand, and struck her repeatedly for about 5 minutes with the stick; Margaret Ann was crying during this time. He hit her on the head, stomach, chest, back and legs with the flat side and edge of the stick. When he was through he put the stick on top of the television set. After that he sent her to the bathroom and gave her some clean panties. He then left her inside the apartment and went out to wash his car. He visited his sister's home and returned at 3 p. m. to pick up the children and take them there. He saw Margaret Ann walk out of the apartment and fall on the hallway stairs next to the bathroom. He seized her by the neck, shook her and slammed her into the edge of the bed. She fell on the floor. He picked her up and slammed her into the other side of the bed; she landed against the steel bedpost and lay still, shutting and opening her eyes. Misquez threw some covers over her, left the apartment and went to work. He said that he did not take the children to his sister's house because he was afraid that his sister would be suspicious if she saw the condition of the child. When he returned home at 6 p. m. after being called by Mrs. Rafferty he did not tell her what had happened because he did not think it was serious. He did not call a doctor because he was afraid the doctor would call the police. He stated that he had beaten Margaret Ann with the stick on previous occasions, beginning about a month before her death. He hit her with the rubber exerciser the day before she died. He gave her a bath on Sunday and noticed bruises on her trunk, legs, arms and face. When asked by the officers whether Mrs. Rafferty knew he was beating the child he said that he always bathed and dressed the girl, so her mother probably never saw the bruises. He admitted that he had also struck Helen and David with the stick. He especially disliked Margaret Ann because of Mrs. Rafferty's attentions to her; she was the only one her mother petted and Mrs. Rafferty gave her more affection than he or the other children received. He got no satisfaction from striking ...