P. v. Baeza
Filed 7/1/13 P. v. Baeza CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Defendant
and Appellant,
v.
ALEXANDRO ALFONSO BAEZA,
Defendant
and Appellant.
E054786
(Super.Ct.No.
RIF10002194)
OPINION
APPEAL
from the Superior Court
of
County. Mark E.
Johnson, Judge. Affirmed.
Nancy
J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Anthony Da Silva and Christopher P. Beesley, Deputy
Attorneys General, for Plaintiff and Respondent.
A
jury found defendant and appellant Alexandro Alfonso Baeza (defendant) guilty
of murder in the second degree (Pen.
Code, § 187, subd. (a)) in connection with the death of his two-year-old son,
and guilty of assault on a child under eight years of age causing death (Pen.
Code, 273ab). The trial court sentenced
defendant on the assault causing death conviction to 25 years to life in prison
and stayed execution of sentence on the murder conviction in accordance with
Penal Code section 654.
In
this appeal, defendant raises three claims of error. First, he contends the trial court’s jury
instruction on implied malice was incorrect, and the error was
prejudicial. Next, defendant contends
the trial court committed error by allowing the prosecutor to introduce
irrelevant character evidence, namely, evidence that defendant was under the
influence of methamphetamine at the time his son died and evidence that the
child’s mother had suspected defendant was physically abusing their son as
evidenced by bruises on the child’s ears.
Finally, defendant contends the trial court violated his Sixth Amendment
right to counsel when, at his sentencing
hearing, defendant moved to dismiss his retained attorney and the trial
court denied that motion.
We
conclude defendant’s claims are meritless.
Therefore, we will affirm the judgment.
The
facts are undisputed. On April 10, 2010, paramedics went to
defendant’s home in Moreno Valley
in response to a 911 call. They found
two-year-old Isaac Gallegos unresponsive and suffering apparent
County Regional Medical
Center where doctors immediately
performed surgery to relieve pressure on his brain caused by a traumatic head
injury. During surgery, Isaac suffered a
massive hemispheric stroke. A large
section of his brain was destroyed due to lack of blood flow. Isaac never regained consciousness. A CT
scan performed the day after the surgery revealed that all of the child’s brain
tissue was abnormal. Isaac was declared
brain dead. After his organs were
donated, he was removed from life support.
Blunt force trauma to the head was the cause of Isaac’s death.
Isaac’s
mother, Andrea Gallegos, testified, in pertinent part, that defendant is
Isaac’s father. He had court ordered
visitation with the child twice each week.
On April 10, 2010,
defendant picked up Isaac in the morning.
Isaac did not want to go and started crying when defendant arrived. When he left with defendant, Isaac was
healthy and behaving normally. Around 11:40 a.m., Gallegos sent a text message to
defendant asking about Isaac. Defendant
responded that the child had a runny nose but otherwise was fine. Around 6:15
p.m., defendant called Gallegos.
He was screaming and said something was wrong with Isaac; he had fallen
and was not breathing. Gallegos told
defendant to call 911. Gallegos met
defendant at the hospital. Isaac was
already in surgery. Defendant told
Gallegos that Isaac had fallen off a toddler bed.
When
interviewed by the police on April 11,
2010, defendant initially denied that anything had happened to
Isaac. Defendant said the child would
not eat, and he had vomited about an hour after arriving at defendant’s
house. Then, a few hours later, Isaac
again vomited. Defendant took Isaac into
his daughter’s bedroom, apparently to change his diaper. Isaac was lying on the daughter’s bed. Defendant was gone “no more than fifteen
seconds†to get wipes, and when he came back, Isaac was standing on the
floor. Defendant told the police he “was
like, wait a sec, what happened, boy, what’s wrong? He’s standing on the floor. He looked fine.†Defendant acknowledged that his daughter’s
bed is no more than two feet tall, “[n]ot tall at all.â€
When the police
confronted defendant and told him Isaac’s injuries were severe and inconsistent
with defendant’s suggestion that Isaac had fallen off a two-foot high bed,
defendant denied the officer’s suggestion that he had shaken Isaac or slammed
him into something. Defendant then admitted
that he had been trying to change Isaac’s diaper after the child’s first nap,
and Isaac fell off the bed. He hit his
head on the floor. Isaac’s head hit the
floor at a “weird angle,†according to defendant. When the officers asked why defendant had not
told them this initially, defendant responded, “Well, just, honestly, man,
honestly I’m really, really like really, really scared, ‘cause I mean I didn’t
even mean to do that at all. I mean he’s
really fragile, and I mean it did happen, and I did not slam him, though,
officer. I did not slam him.†Defendant then said, “When I was changing
him, I was a little frustrated over the whole situation. I did not do it intentionally. He, he was laying on the bed. The diaper was coming—it was—it wasn’t coming
off, grabbed him a little bit, and then I just—I was gonna take off to go get
the wipes, and I slammed right on the floor, boom, head first. I did not pick him up.
I promise
you that.â€
“I didn’t do it hard. I didn’t do it
hard, and that—that’s just what happened.
That’s what happened.†Later,
defendant added that he caught Isaac as he fell, “I had to catch him up by his
legs.†“Caught him,†defendant said,
“His body . . . [¶] . . . [¶] . . . on his upper side—on his upper side is
lose. You know, it’s not hard. [¶] . . . [¶]
Caught him. Boom. Boom.
Just like that, really, really hard, man, really, really hard . . . .â€
The
trial court instructed the jury according to CALCRIM No. 520. To prove murder, “the People must prove
that: [¶] (1)
The defendant committed an act that caused the death of another
person; [¶] And (2) when the defendant acted, he had a
state of mind called malice aforethought. [¶]
There [are] two kinds of malice aforethought: Express malice and implied malice. [¶] .
. . [¶]
Proof of either is sufficient to establish the state of mind required
for murder. [¶] The defendant acted with express malice if he
unlawfully intended to kill. [¶] The defendant acted with implied malice
if: [¶]
(1) He intentionally committed an
act; [¶]
(2) The natural and probable
consequences of the act were dangerous to human life; [¶] .
. . [¶]
(3) At the time he acted, he knew
his act was dangerous to human life;
[¶] And (4) he deliberately acted
with conscious disregard for human life.
Malice aforethought does not require hatred or ill will toward the
victim. It is a mental state that must
be formed before the act that causes death is committed. It does not require deliberation or the
passage of any particular period of time.â€
During
their deliberations, the jury sent a note asking, “Can #4 under implied malice,
page 6, be further explained in regard to conscious disregard?†Over defendant’s objection, the trial court
responded, “Look at paragraph 6 of instruction 200 and apply the common meaning
of these words. ‘Conscious disregard’
means the defendant was aware of the probable dangerous consequences of his
conduct and that he willfully and deliberately failed to avoid the
consequences.â€
Defendant
contends the trial court’s response to the jury’s request for clarification of
the phrase “conscious disregard†allowed the jury to find defendant guilty of
murder based only on a finding that defendant knew his actions created a risk
of serious bodily injury and, therefore, the trial court’s response removed the
required element that defendant be aware his conduct endangers the life of
another. We disagree.
As defendant
correctly states, second degree murder based on implied malice “requires a
defendant’s awareness of engaging in conduct that endangers the life of
another—no more, and no less.†(
143.) The trial court’s response to the
jury’s request for an explanation of conscious disregard does not mention
serious bodily injury. (Cf.
Moreover, the response must be considered in conjunction with the jury
instruction to which it relates, namely CALCRIM No. 520 which, as quoted above,
told the jury that implied malice requires conscious disregard for life. When viewed in context, the trial court’s
response can only mean that defendant was aware of the probable dangerous
consequences his conduct posed to human life, and that he failed to avoid those
consequences, i.e., he engaged in that conduct anyway.
As
previously noted, defendant contends CALCRIM No. 520 is internally inconsistent
because it requires proof that the defendant “deliberately acted with conscious
disregard for human life†but then also states that the mental state of malice
aforethought does not require deliberation.
Defendant’s claim incorrectly assumes “deliberately†and “deliberationâ€
have the same meaning.
The
term deliberation refers to the concept used in conjunction with premeditation
that distinguishes first degree murder from second degree murder—first degree
murder is, among other things, a killing that is willful, deliberate, and
premeditated. (Pen. Code, § 189;
25-26.) In that context, deliberation
means “‘“formed upon a pre-existing reflection.â€â€™â€ (Id.
at p. 26, italics omitted.) Second
degree murder does not require premeditation and deliberation, as CALCRIM No.
520 correctly states. However, as
previously discussed, second degree murder based on implied malice does require
a deliberately performed act, committed with knowledge the act poses a danger
to life and with conscious disregard of that danger. In short, CALCRIM No. 520 is not internally
inconsistent.
In
a pretrial in limine motion, the prosecutor asked the trial court to rule on
the admissibility of evidence that (1) defendant had physically abused Isaac at
least one other time before the day the child died, as evidenced by
photographs, taken after the child had been with defendant, which showed
bruises on Isaac’s ears; and (2) a blood sample taken from defendant at 3:32
a.m., on April 11, 2010, that tested positive for methamphetamine, which in
turn meant defendant was under the influence of that controlled substance not
only when the police interviewed him but also when Isaac was in his care.
The
trial court found the prior abuse evidence admissible under Evidence Code
section 1109, and further found the evidence was more probative than
prejudicial. The trial court also ruled
that the evidence defendant was under the influence of methamphetamine was
relevant to explain defendant’s state of mind at the time he gave his
statements to the police, and the probative value outweighed the potential for
prejudice. Defendant contends those
rulings are both incorrect and resulted in prejudice. Again, we disagree.
A.
Standard of
Review
We review a trial court’s ruling on
the admissibility of evidence under the abuse of discretion standard. (People
v. Geier (2007) 41 Cal.4th 555, 586.)
We will not disturb that ruling “‘“except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of
justice.â€â€™â€ (Id. at p. 585.)
Defendant
contends the evidence that he was under the influence of methamphetamine was
inadmissible under Evidence Code section 1101, subdivision (a), which prohibits
the use of evidence of a person’s character or a character trait to prove that
person’s conduct on a specific occasion.
As previously noted, the trial court ruled the evidence that defendant
was under the influence of methamphetamine was admissible under Evidence Code
section 1101, subdivision (b), on the issue of defendant’s credibility when he
was interviewed by the police. Defendant
concedes the relevance and admissibility of the evidence for that purpose, but
contends the probative value was substantially outweighed by its potential for
prejudice, because “[t]he only plausible purpose for exposing the jury to that
information was to cement in [the jurors’] mind[s] that [defendant] was a drug
user, and therefore a criminal.†In
other words, defendant contends the court should have excluded the evidence
under Evidence Code section 352.
We
are inclined to agree with defendant that the probative value of the evidence
that he was under the influence of methamphetamine was substantially outweighed
by its potential for prejudice and, therefore, the trial court should have
excluded that evidence. The prosecutor’s
evidence showed not only that defendant was under the influence at the time he
was interviewed by the police, but also 12 hours earlier, while Isaac was in
defendant’s care. Moreover, the
prosecutor did not argue in closing that defendant was under the influence of
methamphetamine when he was interviewed by the police and, therefore, his
credibility was questionable. He argued
that the best case scenario was defendant “took methamphetamine just hours
before he picked up Isaac. Worst case
scenario, he’s taking methamphetamine throughout the day that he’s caring for
Isaac.â€
Although
we conclude the trial court should have excluded the evidence in question, we
also conclude the error was not prejudicial, in that it is not reasonably
probable the jury would have reached a result more favorable to defendant if
they had not heard the evidence that defendant was under the influence of
methamphetamine while Isaac was with him.
defendant’s prior abuse of Isaac and his drug use accounted for a substantial
part of the prosecution’s case. The record
does not support that claim, at least with respect to the drug use
evidence. Moreover, defendant’s
prejudice argument focuses entirely on the evidence of prior abuse, the
admissibility of which we now discuss.
Evidence
Code section 1109, subdivision (a)(1), states in pertinent part that “in a
criminal action in which the defendant is accused of an offense involving
domestic violence, evidence of the defendant’s commission of other domestic
violence is not made inadmissible by Section 1101 if the evidence is not
inadmissible pursuant to Section 352.â€
The
trial court, as noted previously, allowed the prosecution to present evidence
in the form of testimony from Isaac’s mother that Isaac had bruises on both
ears after one of his visits with defendant.
Gallegos and her parents took photographs of the bruises, and those
photographs were introduced into evidence at trial. Defendant objected to the admissibility of
that evidence on the ground, first, that it had not been established that red
marks depicted in the photographs actually were bruises and, in any event,
there was no evidence to show defendant had caused the bruises.
We
cannot say the trial court clearly abused its discretion by admitting evidence
that Isaac had bruises on his ears after a visit with defendant. But even if we were to conclude otherwise, we
cannot say the error resulted in prejudice, i.e., a reasonable probability the
jury would have reached a result more favorable to defendant. The jury’s guilty verdicts in this case did
not turn on evidence that defendant might have abused Isaac on other occasions,
or that he might have been under the influence of methamphetamine. They are the result of the evidence that in
his statement to the police, defendant initially lied about how Isaac’s injury
occurred and then admitted he had been involved but purportedly only in an
attempt to prevent the child from falling off the bed. By defendant’s own description, the bed in
question was only two feet high.
name="_ftnref4" title="">[4] Each of the three expert witnesses who
testified at trial
title="">[5] said Isaac’s injuries could not have been
caused by a fall from a height of two feet.
The damage to Isaac’s brain was severe and extensive, equivalent to
injuries that typically occur in car accidents; “[i]t’s a high-impact injury.â€
In
short, the jury convicted defendant of second degree implied malice murder
based on defendant’s statement to the police and the evidence of the extensive
injuries Isaac suffered. It is not
reasonably probable, i.e., there is no “reasonable chance,â€
favorable to defendant if the trial court had excluded the evidence that Isaac
had bruises on his ears when he came home from a visit with defendant. Accordingly, we must reject defendant’s
contrary claim.
At
his sentencing hearing, defendant
moved to discharge his retained attorney.
Defendant also asked the trial court to appoint a new attorney to
represent him and to continue his sentencing hearing. The trial court denied those requests, first
noting that defendant’s sentencing hearing had already been delayed a month,
from September 22 to October 21, at defendant’s request. The trial court concluded defendant’s request
to discharge his attorney was made for the purpose of delay because defendant
had not mentioned any dissatisfaction with his attorney when he made his first
continuance request, and defendant waited to make this motion until just
moments before he was to be sentenced.
Therefore, the trial court denied defendant’s motion to discharge his
attorney.
Defendant
challenges that ruling, claiming the trial court effectively forced him to
choose between representing himself or continuing with the retained attorney he
wanted to fire, and thereby deprived defendant of his right and/or ability to
file a new trial motion. We disagree.
The
pertinent legal principles are undisputed.
The Sixth Amendment right to the effective assistance of counsel includes
the right of a nonindigent defendant to be represented by retained counsel of
the defendant’s choice. (
580, 586.) “[A] defendant—whether
indigent or not—who seeks in a timely manner to discharge retained counsel,
ordinarily should be permitted to do so.â€
(People v. Ortiz (1990) 51
Cal.3d 975, 981.) In other words, a
defendant’s right to discharge retained counsel “is not absolute. The trial court, in its discretion, may deny
such a motion if discharge will result in ‘significant prejudice’ to the
defendant [citation], or if it is not timely, i.e., if it will result in
‘disruption of the orderly processes of justice’ [citations].†(Id.
at p. 983.)
Here,
the trial court found defendant’s request to discharge his attorney was
untimely and was raised for the purpose of delaying his sentencing
hearing. The facts the trial court
cited, as set out previously, support that finding. The trial court offered to grant defendant’s
request, if defendant represented himself at the sentencing hearing, but
defendant declined that offer, insisting instead that he was innocent and
needed a new attorney to make various unspecified motions his current attorney
had refused to make. As the trial court
correctly noted, defendant did not mentioned any issues with his attorney when
he appeared in court a month earlier to request a continuance of his sentencing
hearing, nor did he attempt to raise that claim at any time before the day of
his sentencing hearing. Under these
circumstances, we must conclude the trial court did not abuse its discretion in
denying defendant’s motion to discharge his retained attorney, appoint new
counsel, and continue the sentencing hearing, purportedly to enable newly
retained counsel to file a new trial motion.
(People v. Ortiz,
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting
P.J.
We concur:
RICHLI
J.
KING
J.
name="_ftn1" title=""> [1] The prosecutor showed the jury the videotape
of the police interview of defendant. We
take our quotations from the transcript of the audio portion of the videotape
that was introduced into evidence at trial.
We assume the transcript is wrong, and that defendant actually said,
“Isaac slammed right on the floor, boom, head first.†And when defendant said
he did not pick him up, he meant he did not pick up Isaac and slam him into the
floor, as opposed to he did not pick the child up after he fell and hit his
head.
name="_ftn2" title=""> [2] We do not share defendant’s view that the error
is subject to review under the “harmless beyond a reasonable doubt†standard of
Chapman v. California (1967) 386 U.S.
18, because it violated his federally protected constitutional right to due
process and against self-incrimination.
Defendant does nothing more than make the assertion; he does not explain
how the erroneously admitted evidence violated his rights.
