People v. McKie CA5 ( 2022 )

Filed 12/16/22 P. v. McKie CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080073
Plaintiff and Respondent,
(Super. Ct. No. BF167562A)
v.
DANIEL MCKIE, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Stephen D.
Schuett, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Caely E.
Fallini, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Appellant Daniel McKie appeals his convictions on one count of second degree
murder (Pen. Code,1 § 187, subd. (a); count 1) and one count of assault on a child causing
death (§ 273ab, subd. (a); count 2). Appellant argues that statements he made to the
police and expert medical opinions were impermissibly admitted at his trial and evidence
that could raise a reasonable doubt as to his guilt was improperly exclud ed. In
supplemental briefing, appellant seeks a remand for resentencing based on recent changes
to section 654. For the reasons set forth below, we affirm appellant’s conviction and
remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
The issues raised in this appeal focus on evidentiary and sentencing disputes. We
thus begin with a high-level overview of the facts underlying this case. We include
additional facts as needed when analyzing the claims appellant has raised.
On October 8, 2016, Anakin McKie was born. Anakin was several months
premature. Anakin’s mother and appellant were dating at the time. While Anakin was
not appellant’s child, Anakin’s mother eventually gave him appellant’s last name.
Anakin spent several months in the hospital. He suffered from small
interventricular hemorrhages, a common form of brain bleeding in infants, but was
successfully improving while in the hospital. Anakin also suffered from a perforated
bowel, requiring surgery, and prematurely developed lungs, necessitating continuing
oxygen treatments. While Anakin was in the hospital, appellant was accused of posting a
comment on Facebook asking if anyone knew how to kill a baby while it’s in the
hospital. Based on this post, appellant was removed from the hospital. Anakin was
released from the hospital on January 18, 2017. At the time he was still using oxygen
treatments but was not suffering from any life-threatening conditions, and his health was
continuing to improve.
1 Undesignated statutory references are to the Penal Code.
2.
On February 26, 2017, Anakin died. Anakin’s mother testified that she changed
and fed him around 11:00 a.m. and that Anakin appeared fine at that time. After Anakin
fell asleep, he was left in the bedroom where appellant was resting. At some point, which
Anakin’s mother estimated was around 30 minutes later and others stated was close to
1:20 p.m., appellant came out of the room holding Anakin and saying something was
wrong with him. Paramedics arrived and found Anakin without a pulse and not
breathing. He was pronounced dead at 2:09 p.m.
Appellant initially told the police that he awoke to feed and care for Anakin
multiple times and he found Anakin unresponsive when checking on him. In later
statements to the police, further detailed below, appellant’s story changed to include
claims that he tripped, fell, and dropped Anakin, resulting in Anakin’s injuries.
Anakin’s autopsy showed several suspicious injuries including a “patterned”
injury to the head that indicated an impact had occurred and left a deep bruise, several
blood clots in the brain, bleeding around his optic nerves, subarachnoid hemorrhages,
blood in his spinal column, a grab mark on his leg that resulted in crushed tissue and
internal bleeding, and other similar injuries. The pathologist conducting the autopsy
determined that several of these injuries, and particularly the subarachnoid hemorrhages,
independently established that Anakin had suffered violent head trauma. In addition,
bleeding around the spinal column was identified as a classic sign of violent shaking and
demonstrated a “violent whiplash-like injury during adult-inflicted trauma to an infant.”
The pathologist concluded that nothing about Anakin’s premature birth
contributed to his death and that his injuries were inconsistent with being dropped.
Anakin’s death was ultimately attributed to “blunt head injuries” with the likely
mechanism for causing those injuries being “[v]iolent shaking with impact of the head.”
Appellant was eventually charged with first degree murder and assault on a child
causing death. Following a jury trial, appellant was found guilty of the lesser included
offense of second degree murder and assault on a child causing death. Appellant was
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found not guilty of first degree murder and was sentenced to an indeterminate term of
25 years to life based on the assault causing death conviction, with his sentence on the
second degree murder conviction stayed.
This appeal timely followed.
DISCUSSION
Appellant raises two related arguments regarding the use of statements he made to
the police during his March 9, 2017 interview. In the first, appellant argues that he was
effectively in custody at the point the police indicated he had committed a murder and,
therefore, his Miranda2 rights were violated when the police continued to obtain a
statement from him, subsequently provided his Miranda rights, and then obtained
additional incriminating statements. In the second, appellant argues that his statements
were the product of improper coercion based on implications from the police of leniency
if appellant confessed. As these arguments are tied to the same factual history, we rely
on the factual discussion included when discussing the first for our analysis of the
second.
In addition to these two related arguments, appellant separately contends the trial
court improperly excluded evidence that could raise a reasonable doubt as to appellant’s
guilt and this court should remand the matter so the trial court can independently
determine whether medical testimony concerning shaken baby syndrome is sufficiently
reliable to be admissible. Finally, in supplemental briefing, appellant requests a remand
for the trial court to exercise its newfound discretion as to which portion of appellant’s
sentence to stay under section 654. We consider each argument in turn.
Appellant Was Not In Custody Prior To His Initial Miranda Warnings
The first of the two arguments appellant raises with the introduction of statements
made during his March 9, 2017 interview focuses on whether his Miranda rights were
2 Miranda v. Arizona (1966) 384 U.S. 436.
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violated. Appellant argues that although he came to the interview voluntarily, the police
engaged in a process designed to circumvent his Miranda rights by obtaining
incriminating statements without first providing a Miranda warning, then correcting that
error by giving Miranda warnings, and then having appellant repeat his incriminating
statements. Appellant’s arguments rely upon an underlying position that he was
objectively in custody prior to the first point he was read his Miranda rights. For the
reasons set forth below, we do not agree with that claim.
Factual Background
In this case, appellant made several statements to the police that were utilized at
trial. Relevant to the issues raised in this appeal, appellant sought to exclude evidence of
statements made to the police in an interview occurring on March 9, 2017, based on
allegations that the police should have provided appellant with Miranda warnings earlier
than they did and on the ground his statements were coerced. The trial court ultimately
rejected this request, finding there was no coercion and that appellant’s pre-Miranda
statements were voluntary. Our recitation of facts regarding this appeal are focused upon
the issues argued and thus do not fully detail the admissions made.
According to Senior Deputy Tanner Miller, the March 9, 2017 interview was
preceded by a brief discussion on March 8, 2017. At that time, appellant asked to come
to the police station to speak with Miller. Appellant arrived on March 9, 2017, with his
mother and was escorted by Miller and Detective Victor Garcia to an interview room.
Both officers were visibly armed and remained so during the interview but did not
unholster or refer to their firearms. Appellant was not read his Miranda rights prior to
the start of the interview. However, appellant was told that he was free to leave at any
time, provided with water, allowed to use the restroom, never told he could not end the
interview, never locked in the interview room, and not promised leniency in exchange for
his statements. During the interview, appellant did not ask to leave, did not ask for a
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lawyer, and was allowed to use the restroom, although he was escorted to the restroom by
an officer.
The interview was video recorded.3 It began with Miller and Garcia offering
appellant water, informing him he was not under arrest, that he was free to leave
whenever he wanted, and explaining one exit door was locked but the other was unlocked
at all times. The interview then immediately shifted to having appellant provide a
description of what happened the day Anakin died. The tenor of the conversation was
generally informational, with the police asking for explanations or clarification but
generally asking open-ended and nonleading questions. While maintaining this general
type of questioning, the interview continued into issues such as appellant’s relationship
with Anakin’s mother, the issues Anakin suffered from when born, the purported
Facebook post by appellant while at the hospital, and how appellant thought the post was
the result of his laptop being stolen previously. The interview was generally slow paced,
with appellant being provided ample time to answer questions and describe events.
Approximately 22 minutes into the interview, Garcia first told appellant that the
police were aware of “issues that came up … during Anakin’s autopsy,” such as injuries
that “[weren’t] consistent with basically, the statements that we got.” Garcia told
appellant they had spoken with Anakin’s mother the day before and asked about any
issues that were occurring at the house. Appellant was offered an opportunity to take a
polygraph test and the officers left the room. A short break occurred, at which time
appellant was briefly emotional, before the police told appellant the polygraph person
was not present and that they would continue talking while waiting for him.
The interview then began covering topics where the police believed there were
discrepancies. Issues such as bruising found on Anakin, Anakin’s mother’s statements
3 The court has reviewed the video as well as a redacted transcript made from the
recording.
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about who was caring for the child that day, and the number of times either of the two
parents got up to care for Anakin were all noted. While the police made statements
purportedly sympathizing with the stress that appellant would have been under while
caring for Anakin, implying that they knew appellant had something he wanted to tell
them, and requesting that appellant tell them whether there had been an accident that day,
the questions remained informational in nature with requests for clarification or
additional information, but no direct accusations of wrongdoing on appellant’s part. At
different times during this portion of the interview, appellant became emotional and was
crying during certain answers. The police regularly gave appellant time to compose
himself to answer.
This type of back and forth continued throughout the interview. However, over
time, the police made more direct implications that something other than an accident may
have happened. The first occurred around 37 minutes into the interview when, after
noting the stress appellant had been under, Garcia stated, “I think this—this just got to
you a little bit and you probably snapped a little bit.” This was followed by a suggestion
that appellant may not have meant to do anything and a request to “tell the entire truth.”
The interview then took a short break.
When the interview resumed, a new officer, Deputy Brad Brandon, was present,
replacing Miller. He described his role as a polygraph technician and noted Anakin’s
mother had previously taken a polygraph test. Brandon told appellant that he would be
asked questions during the polygraph test about whether appellant harmed Anakin or did
anything to kill him. Brandon also told appellant if this was anything other than
intentional murder, he needed to explain that now. Brandon told appellant that if he took
the polygraph test and they found he was lying at that point, there would be no going
back.
Brandon then asked what happened, and appellant responded by stating he had
“tripped over [Anakin’s] crib that night and I—I do get frustrated.” The police asked one
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of their first direct questions about what appellant may have done: Garcia asked, “Did
you cover his mouth?” Brandon later asked whether appellant landed on Anakin when he
tripped.
Shortly thereafter, Garcia asked appellant directly if he had “anything to do with
Anakin’s death,” and Brandon stated that “now is the time to say it” if an accident had
occurred because “like I say, if you—if you take this farther, the only conclusion we’re
gonna have is that it was intentional.” Garcia added that the police can “still explain
accidents” and “frustration” but after that, they “can’t explain it anymore.” At this point,
appellant admitted he “got frustrated” but didn’t mean to hurt Anakin before implying the
bruise on Anakin’s head occurred when appellant tripped. Following this statement, the
police told appellant they did not believe the bruise was an accident. From there, the
interview’s tenor consistently included statements from the police that they did not
believe appellant was telling the full truth, that appellant’s explanations did not match the
evidence or did not make sense, and the police pushed for answers. As the interview
progressed, appellant continued to add details, including stating he had dropped Anakin,
tripped over an oxygen tank, and shook Anakin when he noticed he was not breathing.
Appellant even acted out brief portions of the events he was describing.
The questions from the police remained open ended and informational throughout
the majority of the interview. However, as appellant provided more details, the police
identified more places where they felt his statements indicated he was not telling the full
truth or where his statements did not fit their view of the evidence. The police
punctuated these points by showing appellant pictures of the bruising on Anakin’s legs
and head.
At one point, Garcia told appellant the bruise on Anakin’s head would have “put
him out.” He followed up by saying, “That bruise was intentionally caused. I’m trying
to give you the opportunity to help yourself out and make me understand how this was an
accident. Because, it’s one of two things. This was an accident[,] or you just straight up
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killed him. I’d like to believe it’s an accident but you’re not giving us anything that—
that makes us believe that, okay? So, I got [sic] believe the latter that you just straight up
killed him. I wanna believe this is an accident but you need to make us believe. Help us
out. Help me help you.” Miller then immediately changed the subject, asking about
appellant’s feelings when having to take primary responsibility for caring for Anakin.
After a brief back and forth on this topic, Miller accused appellant of killing Anakin.
First, Miller asked, “Then how did Anakin get the bruises? How did Anakin—why is
Anakin dead?” then said, “Anakin is dead because somebody killed him.” Appellant
responded, “Okay,” before Miller stated, “And not somebody killed him, you killed him.”
Garcia then said, “Just explain to us what happened,” before appellant responded, “I
killed him.”
The police immediately asked appellant to again explain what happened.
Appellant made a series of statements explaining he had gotten “angry and ran to the
other … side of the room” before tripping over the oxygen machine and hitting the wall.
During this recitation, appellant contradicted the police when they implied that he shook,
squeezed, or grabbed Anakin in ways that would have caused more serious injuries.
Appellant also admitted to lying in a prior interview with the police. The full scope of
these statements lasted eight minutes, and as soon as they were complete, the police read
appellant his Miranda rights. At this point, the interview had lasted roughly one hour and
20 minutes.
Appellant acknowledged he understood his rights and continued with the
interview. Appellant provided additional details to the police and again acted out his
version of the events leading to Anakin’s death. The police continued asking open-ended
questions, but also began summarizing appellant’s testimony and asking whether
appellant felt or acted in certain ways that appellant had not previously described. In this
line of questioning, appellant eventually admitted to kicking the oxygen tank, which was
attached to Anakin after tripping over it, thereby sending Anakin “towards the door” and
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resulting in him no longer breathing. This additional line of questioning lasted for
approximately 30 minutes and, after an extended break where the police left appellant
alone in the room, appellant was arrested.
Standard of Review and Applicable Law
Generally, when reviewing a Miranda dispute “ ‘ “we accept the trial court’s
determination of disputed facts if supported by substantial evidence, but we
independently decide whether the challenged statements were obtained in violation of
Miranda.” ’ ” (People v. Henderson (2020) 9 Cal.5th 1013, 1023.) When part or all of
the questioning was recorded, the facts are undisputed and we independently review the
trial court’s factual determinations. (People v. Jackson (2016) 1 Cal.5th 269, 339.)
Miranda requires that, before a custodial interrogation, law enforcement must
advise a suspect of certain rights, such as the right to remain silent and the right to the
presence of an attorney. (People v. McCurdy (2014) 59 Cal.4th 1063, 1085–1086.) “A
statement obtained in violation of a suspect’s Miranda rights may not be admitted to
establish guilt in a criminal case.” (People v. Jackson, supra, 1 Cal.5th at p. 339.)
Whether a person is in custody hinges on whether a reasonable person would feel
free to leave. (Howes v. Fields (2012) 565 U.S. 499, 508–509; Miranda, supra, 384 U.S.
at p. 444.) An interrogation is defined as express questioning or other words and actions
on the part of law enforcement that law enforcement should know are reasonably likely to
elicit an incriminating response from a suspect. (Rhode Island v. Innis (1980) 446 U.S.
291, 299–301.) Only the issue of custody is contested in this case.
“An interrogation is custodial, for purposes of requiring advisements under
Miranda, when ‘a person has been taken into custody or otherwise deprived of his [or
her] freedom of action in any significant way.’ [Citation.] Custody consists of a formal
arrest or a restraint on freedom of movement of the degree associated with a formal
arrest. [Citations.] When there has been no formal arrest, the question is how a
reasonable person in the defendant’s position would have understood his [or her]
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situation.” (People v. Moore (2011) 51 Cal.4th 386, 394–395.) The inquiry is objective;
it does not depend “on the subjective views harbored by either the interrogating officers
or the person being questioned.” (Stansbury v. California (1994) 511 U.S. 318, 323.)
All the circumstances of the interrogation are relevant to determining whether it
was custodial. (People v. Moore, supra, 51 Cal.4th at p. 395.) “No one factor is
dispositive. Rather, we look at the interplay and combined effect of all the circumstances
to determine whether on balance they created a coercive atmosphere such that a
reasonable person would have experienced a restraint tantamount to an arrest.” (People
v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.) The most relevant circumstances
typically include: “whether contact with law enforcement was initiated by the police or
the person interrogated, and if by the police, whether the person voluntarily agreed to an
interview; whether the express purpose of the interview was to question the person as a
witness or a suspect; where the interview took place; whether police informed the person
that he or she was under arrest or in custody; whether they informed the person that he or
she was free to terminate the interview and leave at any time and/or whether the person’s
conduct indicated an awareness of such freedom; whether there were restrictions on the
person’s freedom of movement during the interview; how long the interrogation lasted;
how many police officers participated; whether they dominated and controlled the course
of the interrogation; whether they manifested a belief that the person was culpable and
they had evidence to prove it; whether the police were aggressive, confrontational, and/or
accusatory; whether the police used interrogation techniques to pressure the suspect; and
whether the person was arrested at the end of the interrogation.” (Ibid.)
Appellant Was Not In Custody Prior To The Miranda Warnings
Appellant argues there came a point in his interrogation when any reasonable
person would know they were no longer free to leave. More specifically, appellant
identifies this point as the moment the police “made it clear that they ‘knew’ appellant
committed murder,” which his citations suggest is roughly when Garcia asked appellant
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directly if he had “anything to do with Anakin’s death” and Brandon stated “now is the
time to say it” if an accident had occurred because “like I say, if you—if you take this
farther, the only conclusion we’re gonna have is that it was intentional.”
We note at the outset that prior to this point, the record does not reflect a situation
where the restraint on appellant’s freedom of movement was tantamount to a formal
arrest. The record shows that appellant initiated the contact with a desire to speak to the
police about the incident. He was uncuffed and remained in an unlocked room. He was
informed he was free to leave at any time, provided with water, allowed to use the
restroom, never told he could not end the interview, never locked in the interview room,
and not promised leniency in exchange for his statements. Further, the questions were
neither accusatory nor improper. In all, appellant was provided with the opportunity he
asked for, a chance to speak with the police, and a reasonable person in that situation
would have known they could end the interview.
The question thus becomes whether this objectively noncustodial interrogation
changed when the police began questioning appellant more directly about conflicts in the
evidence and their belief that Anakin’s death was not an accident. Upon review of the
record, we conclude no such change occurred. The main change in tenor of the
interrogation related to the police identifying their belief that appellant was not telling the
full truth, indicating that appellant’s continued failure to tell the truth would result in a
conclusion he killed Anakin, and eventually informing appellant he was suspected of
killing Anakin. However, even with this change in tenor, the overall nature of the
interrogation was not the type of coercive atmosphere such that a reasonable person
would have experienced a restraint tantamount to an arrest.
“Even a clear statement from an officer that the person under interrogation is a
prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free
to come and go until the police decide to make an arrest.” (Stansbury v. California,
supra, 511 U.S. at p. 325.) In this case, the police kept most of their questions open
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ended and informational in nature even after identifying problems with appellant’s
version of the facts. As appellant’s story continued to shift, the police began focusing
upon inconsistencies and informing appellant that these issues were limiting the way they
could view the matter. They did not, however, engage in aggressive tactics or otherwise
indicate to appellant he was under arrest. There is no objective indication in this part of
the record that, had appellant recognized his statement was causing more harm than good,
he could not have chosen to end the interview and leave. Only after appellant potentially
admitted to killing Anakin and provided a more direct explanation of what happen did
this potentially change. However, at this point, the police immediately provided Miranda
warnings before proceeding.
Given the record, we conclude that appellant’s interview was not custodial in
nature prior to the point that the police provided him with Miranda warnings.
Accordingly, because Miranda warnings were not required prior to the point the police
provided them, appellant’s argument that the police engaged in an inappropriate, two-
stage interrogation designed to thwart the protections of Miranda also fails. There was
no intentional attempt to circumvent Miranda by withholding warning until after a
confession was obtained. (See Missouri v. Seibert (2004) 542 U.S. 600, 620 [statement
improperly admitted where warning was withheld to obscure both the practical and legal
significance of the admonition when finally given].)
Appellant’s Statements Were Voluntary
Appellant’s second argument regarding the admission of his statements contends
that his statements were coerced and thus not voluntarily made. Appellant argues the
police made sufficient promises of leniency through references to the potential that
Anakin’s death was an accident brought on by stress to coerce a confession, particularly
so because the police knew at the time the autopsy resulted in a homicide conclusion.
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Standard of Review and Applicable Law
“When a defendant challenges the admission of a statement on the grounds that it
was involuntarily made, the state bears the burden of showing by a preponderance of the
evidence that a defendant’s statement was, in fact, voluntary. [Citation.] On appeal, we
accept the trial court’s factual findings as to the circumstances surrounding the
confession, provided they are supported by substantial evidence, but we review de novo
the ultimate legal question of voluntariness.” (People v. Battle (2021) 11 Cal.5th 749,
790.) “The facts surrounding an admission or confession are undisputed to the extent the
interview is tape-recorded, making the issue subject to our independent review.” (People
v. Linton (2013) 56 Cal.4th 1146, 1177 (Linton).)
We consider a statement involuntary if it is the product of “coercive police
conduct.” (People v. Williams (2010) 49 Cal.4th 405, 437.) We evaluate the totality of
the circumstances to determine “whether the defendant’s ‘ “will has been overborne ...” ’
by coercion.” (Id. at p. 436.) Relevant factors include the location of the interrogation,
whether the interrogation was repeated or prolonged, whether the defendant was deprived
of food or sleep, and whether the officers made threats or promises or used deceptive
practices, among others. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226; People v.
Dykes (2009) 46 Cal.4th 731, 752; see Linton, supra, 56 Cal.4th at p. 1178.) The
presence of police coercion is a necessary, but not always sufficient, element. (Williams,
at p. 436.) Further, vague statements that cooperation will be beneficial or that telling the
truth will work in one’s favor are generally considered insufficient to qualify as a promise
of leniency without more. (See People v. Zabelle (2022) 80 Cal.App.5th 1098, 1107–
1108 [citing cases holding the same].)
Discussion
Appellant’s claim in this case is that his purported confession was coerced by the
police because they implied that a statement confirming Anakin’s death was an accident
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may result in leniency, despite knowing Anakin’s death was not an accident. 4 We do not
agree that the statements made by the police seeking explanations for the injuries Anakin
suffered rise to the level of coercive action. “To the contrary, [the] suggestions [made by
the police] that the [incident] might have been an accident, a self-defensive reaction, or
the product of fear, were not coercive; they merely suggested possible explanations of the
events and offered defendant an opportunity to provide the details of the crime. This
tactic is permissible.” (People v. Carrington (2009) 47 Cal.4th 145, 171.) Indeed, the
case law indicates that the tactics in line with those used in this case are insufficient to
demonstrate coercion. For instance, confronting a defendant with inconsistencies in his
statement is “not an improper interrogation technique, as an interrogation may include
‘ “exchanges of information, summaries of evidence, outline of theories of events,
confrontation with contradictory facts, even debate between police and suspect.” ’ ”
(People v. Spencer, supra, 5 Cal.5th at p. 674; see Linton, supra, 56 Cal.4th at p. 1178
[officers can exhort a suspect to tell the truth and repeatedly express that they believe a
suspect is lying]; People v. Williams, supra, 49 Cal.4th at p. 444 [officers can engage in
vigorous questioning of suspects meant to ascertain a defendant’s involvement in
crimes].) This is especially so where the officer’s exhortations and persistent questions
are relatively “low key,” as they were in this case. (Linton, at p. 1178.)
Based on the totality of the circumstances, we conclude that appellant’s statements
were voluntary. While the police sought to obtain a statement from appellant, they did so
primarily by allowing appellant to explain his position and then systematically contesting
4 Appellant does not make any claims relating to more direct forms of coercion. Upon
review of the record, we find none in the overall conduct of the police. (See People v. Spencer
(2018) 5 Cal.5th 642, 672–673 [finding no coercion where assertions lacked claims of physical
intimidation or deprivation, officer gradually obtained more incriminating details and refrained
from “vituperative statements,” name-calling, any obvious strong-arm tactics, and “base appeals
to [the defendant]’s deeply held beliefs, and the defendant “also had the wherewithal to
articulate—time and again—a version of events that minimized his involvement” before finally
admitting guilt].)
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that story based on contradictory evidence. In this context, their statements that an
accidental injury could be understood do not rise to the level of promising leniency for a
confession. The notion of an accident being understandable does not indicate that
appellant would avoid arrest or serious conviction if he admitted to causing Anakin’s
death. Accordingly, we find no error in the admission of appellant’s statements.
Appellant’s Evidence Was Not Improperly Excluded
Appellant’s third argument contends the trial court abused its discretion by
excluding evidence that could have raised a reasonable doubt as to appellant’s guilt.
Factual and Procedural Background
Appellant’s briefing discusses three instances where evidence offered by appellant
was excluded by the trial court allegedly based on a finding it violated a ruling precluding
evidence relating to third party culpability claims. As appellant notes, the issue of third
party culpability evidence was first raised in a pretrial motion. At that time, the trial
court refused to issue a blanket exclusion and instructed the parties it would consider any
contested proffered evidence under People v. Hall (1986) 41 Cal.3d 826.
At trial, the first issue arose during appellant’s cross-examination of Anakin’s
mother. Appellant elicited testimony from Anakin’s mother that appellant’s sister had
entered the room where Anakin and appellant were on the morning Anakin died.
Appellant then sought to elicit testimony relating to previous fights or arguments between
appellant’s sister and Anakin’s mother. At this point the prosecution objected and a
sidebar was held. The trial court sustained the objection and later placed on the record a
statement concerning the sidebar. In that statement, the court explained it had excluded
the evidence of past arguments on relevance grounds because there was no evidence that
any past history between appellant’s sister and Anakin’s mother would support an
argument that appellant’s sister had killed Anakin.
In later questioning, appellant sought to elicit additional testimony concerning
whether Anakin’s mother saw appellant’s sister enter Anakin’s room. In this instance,
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Anakin’s mother claimed not to have seen anyone else enter Anakin’s room. When
pressed on this statement the prosecution objected based on the trial court’s prior ruling,
and the trial court sustained all of the objections thereby precluding any further statement
from Anakin’s mother on this point. A sidebar was held. The parties later placed their
positions at the sidebar on the record. Appellant argued that the location of all people in
the house was relevant to his potential defenses. In response, the court explained it had
asked for some form of offer of proof that would link appellant’s sister to the crime,
exclusive of mere presence, in order to warrant the questions. No further discussion
ensued.
The second instance arose during appellant’s cross-examination of the doctor that
had treated Anakin when he was first born. Appellant began by asking the doctor to
define a condition in premature newborns called ventriculomegaly. After some
background discussion on the condition, appellant sought to ask questions regarding brain
bleeding and brain pressure caused by the condition. The prosecution objected to these
questions on grounds that they lacked foundation, were not relevant, and assumed facts
not in evidence, which the trial court sustained. There is no indication the parties
discussed how the evidence connected to third party culpability concerns during this
exchange.
The third instance occurred during appellant’s testimony. In questioning
regarding appellant’s relationship with Anakin’s mother, he was asked about any emotion
she showed when the two were living together. As part of his response, appellant stated
Anakin’s mother would “throw tantrums. She would yell at me a lot. There were times
where she hit me.” The prosecutor objected that this response violated the court’s in
limine rulings. The court agreed and struck the answer. Appellant’s testimony continued
and he answered several questions relating to Anakin’s mother’s attitude when caring for
Anakin and her general composure as a mother, including a specific example where
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Anakin’s mother turned to appellant for help when she could not get Anakin to stop
crying.
Appellant’s counsel then asked whether Anakin’s mother had showed any
frustration with Anakin. This drew an immediate objection followed by an extended
sidebar discussing the court’s ruling on third party culpability evidence and questions
touching on that subject. In that sidebar, appellant’s counsel explained the desire to
discuss other people being in the room the morning Anakin died came from information
the prosecution had provided and was thus not a surprise tactic. Appellant’s counsel also
noted that the court had not been aware of the prosecution’s disclosure relevant to this
argument at the time it made its initial ruling. The court affirmed that it did not intend to
change its prior view that appellant needed to provide some direct or circumstantial
evidence linking the third person to the actual perpetration of the crime through at least
an offer of proof to permit such evidence into the trial. Having heard no such offer, the
court affirmed its belief that such evidence was properly excluded under Evidence Code
section 352.
Standard of Review and Applicable Law
“ ‘To be admissible, the third-party evidence need not show “substantial proof of a
probability” that the third person committed the act; it need only be capable of raising a
reasonable doubt of defendant’s guilt. At the same time, we do not require that any
evidence, however remote, must be admitted to show a third party’s possible
culpability.… [E]vidence of mere motive or opportunity to commit the crime in another
person, without more, will not suffice to raise a reasonable doubt about a defendant’s
guilt: there must be direct or circumstantial evidence linking the third person to the
actual perpetration of the crime.’ [Citation.] We emphasized that ‘courts should simply
treat third-party culpability evidence like any other evidence: if relevant it is admissible
([Evid. Code,] § 350) unless its probative value is substantially outweighed by the risk of
undue delay, prejudice, or confusion ([Evid. Code,] § 352).’ [Citation.] A trial court’s
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discretionary ruling under Evidence Code section 352 will not be disturbed on appeal
absent an abuse of discretion.” (People v. Lewis (2001) 26 Cal.4th 334, 372–373,
fn. omitted, second & fifth bracketed insertions added.)
Discussion
Although appellant cites to cases that discuss the rules governing third party
culpability evidence, his arguments tend to analyze the evidentiary rulings in this case on
alternative grounds. Thus, when discussing questions to Anakin’s mother about who else
may have had access to Anakin, appellant argues Anakin’s mother’s excluded testimony
“would have impeached her testimony[] and called her credibility into account.” With
respect to the questions about ventriculomegaly, appellant argues the trial court’s ruling
precluded “any inquiry into the possible causes of brain bleeding in infants” and that such
evidence was not third party culpability evidence at all. Finally, with respect to
appellant’s excluded testimony, appellant contends the evidence in this case could not
rule out prior injuries causing Anakin’s death based on the many potential causes of
infant brain bleeding and, therefore, it was “entirely relevant [to inquire] as to who
inflicted … earlier injuries.” Appellant concludes, though, with a third party culpability
argument alleging the rules governing third party culpability evidence are inconsistent
with due process and the Sixth Amendment.
Regardless of the bases underlying appellant’s positions, we find no abuse of
discretion in the trial court’s decisions to exclude the three lines of questioning identified
by appellant. The court’s rulings properly followed the rules outlined by our Supreme
Court for introducing third party culpability evidence, requiring some direct or
circumstantial evidence linking the third person to the actual perpetration of the crime
before allowing evidence that the court finds otherwise excludable under Evidence Code
section 352 to be introduced. With no offer of proof made that any other individual could
be linked to Anakin’s death, the court could reasonably conclude that evidence of third
party culpability was irrelevant or subject to exclusion under Evidence Code section 352.
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Further, we find no basis in the record for finding our Supreme Court’s test for
admissibility of third party culpability evidence is constitutionally infirm. The test itself
turns upon notions of relevance and the general authority of the court to exclude unduly
prejudicial evidence under Evidence Code section 352. And the record in this case shows
the trial court considered the evidence as infirm both for relevance and prejudice grounds.
It is well settled that the application of general rules of evidence does not violate a
defendant’s constitutional rights. (People v. Abilez (2007) 41 Cal.4th 472, 503–504.)
Nor do we see any error if the evidence is viewed outside of the constructs of third
party culpability issues. The exclusion of cross-examination questions regarding
Anakin’s mother’s credibility was within the trial court’s discretionary authority to limit
cross-examination. (See People v. Elliott (2012) 53 Cal.4th 535, 579 [“ ‘ “[N]ot every
restriction on a defendant’s desired method of cross-examination is a constitutional
violation,” ’ and ‘ “the trial court retains wide latitude in restricting cross-examination
that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.” ’ ”].)
This is particularly so given that the record already contained a question and answer
affirming that Anakin’s mother did, in fact, see appellant’s sister enter Anakin’s room.
Her later contradiction of that testimony provided appellant with sufficient record
evidence to test her credibility.
With respect to the ventriculomegaly questions, appellant has failed to
demonstrate Anakin suffered from the condition. Accordingly, appellant has failed to
demonstrate the court erred when, after permitting background questions on the nature of
the condition, it limited further questioning. Finally, appellant has likewise failed to
demonstrate the court erred in excluding testimony that Anakin’s mother hit him or that
she had negative feelings toward Anakin. Appellant’s argument turns on a claim that
other bases for Anakin’s death rendered the evidence relevant. But this court has rejected
the claim that appellant was wrongly prevented from asking questions about
ventriculomegaly, and appellant has failed to argue or show there were other relevant
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bases for the evidence proffered. (See People v. Babbitt (1988) 45 Cal.3d 660, 681–682.)
“[E]xclusion of evidence that produces only speculative inferences is not an abuse of
discretion.” (Id. at p. 684.)
Appellant’s Kelly/Frye5 Hearing Argument
Appellant’s fourth argument contends that expert medical evidence presented
regarding the manner of Anakin’s death should have been excluded as unreliable under a
Kelly/Frye theory. Appellant alleges that he was convicted on a shaken baby theory of
harm that has been rejected by modern science. The People respond by arguing appellant
has forfeited this claim for failing to raise it below and, regardless, the evidence
introduced here is not subject to Kelly/Frye analysis because it is expert medical
testimony. We agree with the People that a Kelly/Frye hearing is not appropriate for
challenging the expert medical testimony in this case.6
Applicable Law
“The hallmark of the Kelly/Frye rule … is that the proponent must establish,
‘usually by expert testimony,’ that the technique is ‘ “sufficiently established to have
gained general acceptance in the particular field in which it belongs.” ’ [Citation.] The
proponent also must establish that ‘the witness furnishing such testimony’ is ‘properly
qualified as an expert to give [such] an opinion.’ [Citation.] The third and final
requirement … is for the proponent to show that ‘correct scientific procedures were used
5 The Kelly/Frye rule (People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C.
Cir. 1923) 293 F. 1013, superseded by the Federal Rules of Evidence, see Daubert v. Merrell
Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579) conditions the “admissibility of expert
testimony based upon the application of a new scientific technique” on a “preliminary showing
of general acceptance of the new technique in the relevant scientific community.” (Kelly, at
p. 30.)
6 For efficiency purposes, we do not specifically reach the People’s forfeiture claim.
However, we note that appellant’s requested remedy, a remand so the trial court can take and
consider evidence on reliability for the first time, strongly supports the People’s assertion that
this claim was not raised below.
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in the particular case.’ ” (People v. Stoll (1989) 49 Cal.3d 1136, 1155 (Stoll), second
bracketed insertion in original.)
“While the standards imposed by the Kelly/Frye rule are clear, the definition of a
‘new scientific technique’ is not.” (Stoll, supra, 49 Cal.3d at p. 1155.) Accordingly, at
least two themes have developed in analyzing such claims. “First, Kelly/Frye only
applies to that limited class of expert testimony which is based, in whole or part, on a
technique, process, or theory which is new to science and, even more so, the law.” (Id. at
p. 1156.) “The second theme in cases applying Kelly/Frye is that the unproven technique
or procedure appears in both name and description to provide some definitive truth which
the expert need only accurately recognize and relay to the jury.” (Ibid.) “However,
absent some special feature which effectively blindsides the jury, expert opinion
testimony is not subject to Kelly/Frye.” (Id. at p. 1157.) Because of this, our Supreme
Court recognized that it has never applied Kelly/Frye to expert medical testimony. (Ibid.)
A decision concerning the admissibility of evidence is subject to review for abuse
of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 266.) “This is especially so
when, as here, the evidence comprises expert opinion testimony.” (Ibid.) However, the
“conclusion that a certain legal principle, like the Kelly/Frye rule, is applicable or not in a
certain factual situation is examined independently.” (Ibid.)
Discussion
The evidence in this case falls outside of the protections of the Kelly/Frye rule. As
in Stoll, none of the concerns addressed by Kelly/Frye are present in the contested
evidence, and the methods employed are neither new to medicine or the law nor do they
carry a misleading aura of scientific infallibility. (See Stoll, supra, 49 Cal.3d at p. 1157.)
We thus find no indication that a Kelly/Frye hearing was required in this case.
Appellant contends that this is a “ ‘reverse’ application of the Kelly rule”
involving a scientific method that has fallen out of favor and is limited to a specific
situation where “a conviction was based on the ‘classic[]’ triad of [shaken baby
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syndrome] indicators” and not other evidence of harm. However, we read nothing in
Kelly/Frye that would support a “reverse” application of the rule. Rather, in such
circumstances, cross-examination based on the current scientific evidence is a more than
effective means to overcome the claim of stale science. Further, to the extent appellant
argues this case is limited to a “classic” shaken baby syndrome claim, the record
contradicts that finding. While there was not extensive evidence of shaking, the record
did include evidence of bruising to Anakin’s head and leg that were consistent with the
medical conclusion that Anakin’s death was nonaccidental. The expert medical
testimony on the mechanism and manner of Anakin’s death was sufficiently reliable to be
admitted and was thus subject to challenge on cross-examination, not through a post-hoc
remand for additional evidence on reliability.
Remand To Apply Assembly Bill No. 518
In supplemental briefing, appellant requests a remand for resentencing given the
benefit of newly enacted Assembly Bill No. 518 (2021–2022 Reg. Sess.) (Assembly
Bill 518). The People agree and do not oppose the remand request.
Prior to its amendment by Assembly Bill 518, section 654 provided: “An act or
omission that is punishable in different ways by different provisions of law shall be
punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” (Former § 654, subd. (a).) Effective January 1, 2022, Assembly Bill 518
amended section 654 to provide, in relevant part: “An act or omission that is punishable
in different ways by different provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished under more than one
provision.” (§ 654, subd. (a), as amended by Stats. 2021, ch. 441, § 1.) Thus, a trial
court is no longer required to impose a sentence under the crime provid ing for the longest
possible sentence but may sentence a defendant under any one of the applicable crimes.
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Here, the trial court specifically sentenced appellant under former section 654, the
controlling law at that time, stating: “With respect to Count 2, which is a violation of
Penal Code Section 273AB(a), the sentence for Count 2 is the greater sentence. The
Court will sentence [appellant] for the conviction under Penal Code Section 273AB(a).
Court will deny probation and sentence [appellant] to a term of 25 years to life.” The
court similarly stayed the 15-year-to-life sentence imposed for the second degree murder
conviction. With the passage of Assembly Bill 518, the trial court now has discretion in
this case to choose a term of incarceration applicable to either count 1 or 2, while staying
the term applicable to the other count. Appellant is entitled to the benefit of Assembly
Bill 518 upon resentencing.
DISPOSITION
Appellant’s sentence is vacated, and the matter is remanded for the trial court to
exercise its discretion under section 654, as amended by Assembly Bill 518. (Stats. 2021,
ch. 441, § 1.) In all other respects, the judgment is affirmed.
HILL, P. J.
WE CONCUR:
DETJEN, J.
PEÑA, J.
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