People v. Smith
| Decision Date | 27 October 2010 |
| Docket Number | No. VCR195166,A125912,VCR195166 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOVON'Z DESHUN SMITH, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Jovan'z Deshun Smith appeals from a judgment entered after a jury convicted him of committing an assault on a child that resulted in death. (Pen. Code, § 273ab.)1 He contends his conviction must be reversed because the trial court erred when it denied his motion to suppress. We disagree and will affirm.
Appellant was convicted of assaulting and causing the death of Taniya Rose, his 18-month-old daughter.
In December 2007, Taniya lived with her mother, Tyana Rose (Rose), and her grandmother, Hermenia Christian in an apartment in Vallejo. Rose believed that appellant, who was 16 years old, was Taniya's father.
Appellant visited Taniya on December 12, 2007. At one point during the visit, Christian called Rose to the kitchen to teach her how to cook chicken. Appellant was left alone in the bedroom with Taniya.
A few minutes later, appellant came into the kitchen with Taniya saying she was not breathing. Christian took the baby and ran outside screaming for help. A neighbor gave the infant mouth to mouth resuscitation until the paramedics arrived.
The paramedics put Taniya into an ambulance and one of them tried to insert a breathing tube into her trachea. When he was unsuccessful, another paramedic inserted a laryngoscope into Taniya's mouth and saw what looked like a "real pale, white, chewed-up piece of bubble gum" in her throat. The paramedic grabbed the object with a pair of forceps and gave it a tug. He pulled out a large wad of baby wipes that had been bunched up into a ball the size of a golf ball.
When the paramedics arrived at the hospital, Taniya was not breathing and she did not have a heart rate. Taniya died about a week later when life support measures were discontinued. The cause of death was anoxic encephalopathy due to asphyxia. In lay terms, Taniya died because her brain was deprived of oxygen when a foreign body blocked her airway.
The police interviewed appellant at the police station two days later on December 14, 2007. During the course of the interview, appellant admitted that he was angry with Rose and that he had shoved several baby wipes down Taniya's throat.
Based on these facts, an information was filed charging appellant with murder (§ 187), and committing an assault on a child that resulted in death. (§ 273ab.) The case proceeded to trial where jurors were unable to reach a verdict on the murder charge, but convicted him on the assault charge.
After the court sentenced appellant to 25 years to life in prison, he filed the present appeal.
Prior to trial appellant filed a motion to suppress the statements he made to the police. The trial court conduced a hearing on appellant's motion. The following evidence was adduced.
Officer Edward Barrientos was assigned to Vallejo High School as a youth services officer. On December 14, 2007, Vallejo Police Detective Sharon Fong asked Barrientos to determine whether appellant was at school that day. Barrientos determined appellant was at school and arranged to meet with him in the dean's office. When appellant arrived, Barrientos told him he was not under arrest and asked whether he was willing to go to the police station to answer some questions. Appellant agreed and Barrientos drove him to the station carrying on a friendly conversation on the way.
Detective Fong interviewed appellant at the station. At the beginning of the interview, Fong also told appellant that he was not under arrest and that he could end the interview and leave at any time. Appellant said he understood.
The interview began at approximately 2:30 p.m. and continued for several hours. Others participated in the interview including Taniya's grandmother Hermenia Christian, Detective Mustard, and Detective Pucci. During the course of the interview, appellant admitted that he was angry with Rose because she had told him that Taniya might not be his child. Appellant said he was "a little bit pissed" and while Taniya was sitting on his lap, he balled up some baby wipes and pushed them down her throat.
When appellant implicated himself in the crime, the police moved him to a custodial interrogation room and advised him of his Miranda rights. Appellant waived those rights and the interview continued. Again, appellant admitted that he shoved baby wipes down Taniya's throat because he was angry with her mother.
Appellant's actions at the police station were recorded and the trial court viewed the DVDs of the entire interview. The court also heard testimony from witnesses who stated that appellant suffers from poor hearing and that he has to rely on lip reading. The value of this testimony was undercut by the fact that appellant called his father at the conclusion of the interview, and the DVD shows appellant was able to communicate withhis father without any difficulty even though the phone was on a table and appellant could not see his father's lips.
The trial court considering this evidence declined to suppress appellant's statement explaining its decision as follows:
Appellant now argues the trial court erred when it denied his motion to suppress. He contends the court should have granted his motion because he was in custody when he made his initial incriminating statements and he had not yet been provided his Miranda rights.
The parties on appeal agree that the pivotal issue for purposes of this argument is whether appellant was in custody when he made his initial incriminating statements to the police. Two discrete inquires are essential to that determination. First, what were the circumstances surrounding the interrogation, and second, given those circumstances, would a reasonable person have felt he was not at liberty to terminate the interview and leave. (People v. Ochoa (1998) 19 Cal.4th 353, 401-402.) On appeal, the trial court's factual findings with respect to the first issue must be upheld so long as they are supported by substantial evidence. (Id. at p. 402.) Whether a reasonable person would have felt free to terminate the interview and leave is a question of law that this court reviews de novo on appeal. (Ibid.)
Applying this standard, we conclude the trial court's ruling was well supported. The record here indicates that appellant was told three times that he was not under arrest and that he was free to go. The first occurred when appellant was at school. Officer Barrientos told appellant he was not under arrest and he asked appellant whether he was willing to answer some questions at the police station. The second time occurred when Detective Fong began interviewing appellant at the police station. Fong told appellantthat he was not under arrest and that he was free to terminate the interview and leave at any time. The third time occurred when Detective Pucci came into the interview room to give appellant a voice stress test. Appellant asked Pucci whether he could leave after the test. Pucci said he did not know, but he then went on to tell appellant yet again that he was not under arrest. We think a reasonable person who is told repeatedly that he is not under arrest and that he is free to go would understand that he is not under arrest and that he is free to go. We conclude the trial court ruled correctly.
Our conclusion on this point is fully consistent with prior case law. For example in People v. Ochoa, supra, 19 Cal.4th 353, the defendant signed a statement in which he voluntarily agreed to submit to a lie detector test. Among other things it said, ' " (Id. at p. 402.) Our Supreme Court ruled that someone who had signed such a statement would understand that he was not in custody. As the court explained, "A reasonable person in defendant's position, knowing that he or she need say nothing at all, would understand that he or she would do the examiner a favor by offering to leave rather than wasting the examiner's time by sitting mute." (Ibid.)
The situation here is even more clear than Ochoa because appellant was told specifically and repeatedly that he was not under arrest and that he was free to go. Like Ochoa we conclude a reasonable person in appellant's position would...
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