Filed 5/16/13 P. v. Reyes CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
CARL JOSEPH REYES,
Defendant and Appellant. B240698
(Los Angeles County Super. Ct. No. VA118830)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. Thomas I. McKnew, Jr., Judge. Affirmed.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *2 A jury convicted appellant, Carl Joseph Reyes, of felony child abuse (Pen. Code, § 273a, subd. (a)), 1 and found true an enhancement allegation that, in committing that offense, appellant personally inflicted great bodi ly injury on a child under the age of five (§ 12022.7, subd. (d )). The court imposed a prison term of nine years, consisting of the middle term of four years on the substantive offense and five years consecutively on the accompanying enhancement. Appellant contends that (1) the trial court should have ex cluded his confession
obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ), and (2) he
received ineffective assistance of counsel. We reject these contentions and affirm the judgment. 2
FACTUAL BACKGROUND Antonio P. along with his partner Venu s L. and their four children lived on Redcoach Lane in Whittier. Ap pellant was hired on Septembe r 2, 2010, to take care of
the children while Antonio P. and Venus L. worked outside the home. Appellant’s duties consisted of taking the three older children to school in the morning, providing care for two-year-old J.P. during the daytime, and then picking up the older children from school and taking care of all four child ren until either Antonio P. or Venus L. returned home in the evening. On February 28, 2011, at approximately 8:30 a.m. appellant returned to the house with J.P. after taking the older children to sc hool. Appellant and J.P. played outside for
about 10 minutes before J.P. went to the bath room. Appellant told J.P. to wash and dry his hands after urinating. J.P. needed help to use the sink becaus e he was too short to reach it himself. There was no step stool in the bathroom and Venus L. had never seen

1 All further statutory references are to the Penal Code unless otherwise stated.

2 Concurrently with this appeal, on Febr uary 20, 2013, appellant filed a petition for writ of habeas corpus in case No. B246957, alleging the same grounds raised in this appeal. We shall dispose of the petition by a separate order.3 J.P. climb up onto the sink. Appellant ran th e hot water in the sink and J.P.’s hands were badly burned. Appellant called Antonio P. and told him th ere had been an accident when he tried to give J.P. a bath. Antonio P. told appella nt to call 9-1-1 and an ambulance transported J.P. and appellant to a local hospital. When Antonio P. arrived at the hospital shortly thereafter he did not see appellant but was told by a sheriff’s deputy that appellant was at the hospital. J.P. was subsequently transfe rred to the Grossman Bu rn Center in Santa
Ana.
Detective Claudia Garcia is a child a buse investigator with the Los Angeles County Sheriff’s Department. When she re sponded to the reside nce on Redcoach Lane she saw appellant seated in the back seat of a police car and Antonio P. standing in the front yard. Detective Garcia inspected the house and used a thermometer to check the temperature of the water in the bathroom si nk. The water reached a high temperature of 110 degrees. She interviewed Antonio P. but did not record the interview. Detective Garcia then interviewed appellant inside the re sidence. They were seated at the kitchen
table. The interview was recorded and the audiotape was pl ayed for the jury. According to the transcript of the interview, Detec tive Garcia initially told appellant that she questioned Antonio P. about what happened and wanted to do the same with appellant. She told him it was an inve stigation and he was not under arrest. She told appellant, “When you don’t want to talk, we just don’t talk, okay?” Appellant initially provided personal b ackground informati on in response to Detective Garcia’s questions. Then he said he took J.P. to the bathr oom to urinate in the toilet and left him there. Appellant said J.P. was able to climb up and turn on the faucet to wash his hands. Appellant heard J.P. cryi ng. Detective Garcia told appellant that the
scenario he described was not co nsistent with the results of th eir investigation. She asked if something happened and if appellant got frust rated or lost control. Appellant said he was “really stressed lately.” Initially he was paid $250 each week bu t he was told his pay was going to be cut. He got in trouble for so me things that happened at the house and he felt his work was not appreciated. When Dete ctive Garcia asked appellant if he felt bad,4 he replied “I didn’t mean to hurt him,” and sa id he had J.P. wash his hands in hot water in
the bathroom sink. Appellant said that J.P. was fine and sometimes “gets a little crazy” but the three other kids were always loud and fighting and did not listen to him. Appellant was upset
because J.P. had not eaten his food. He “k ind of got a little mad at [J.P.] because he wasn’t eating his food and he had it in his mouth for so long and [appellant] was asking
him to eat it . . . .” When he took J.P. to th e bathroom to urinate he noticed that J.P. still had food in his mouth. Appella nt was angry. J.P. started to cry and struggled when the water became hot while he was washing his ha nds. When Detective Garcia asked how J.P.’s hands got burnt appellant stated, “I was just holding him.” Appellant said it was hard for him to tell anybody but it was easi er to open up to Detective Garcia. He was not a professiona l babysitter and was upse t because Antonio P. and Venus L. always criticized his work. He held J.P.’s hands in the hot water for “[p]robably less than a minute but not five minut es.” He turned off the hot water and put
cold water on J.P.’s hands and dried them. When he saw th e skin was peeling he called
Antonio P. Detective Garcia asked appellant to sh ow them the bathroom because J.P. was taken to a burn center and it was important fo r them to know how it happened. Appellant was “a little uncomfortable,” and said, “I shoul d have thought twice about it. Honestly that’s not me. I’m not really sure what happen ed. I kind of lost it a little bit.” Appellant used a stuffed teddy bear to demonstrate how he held J.P.’s hands under the hot water. Sergeant Al Fraijo video-reco rded the demonstration by ap pellant and the DVD recording was played for the jury. Dr. Andrea Dunkelman operated on J.P. at the Grossman Burn Center. She testified that J.P. suffered mostly deep seco nd-degree and some superficial third-degree burns on his hands. Dr. Dunkelman qualified as an expert witne ss and opined that the burns appeared to be the result of an intentional injury rather than an accident. There was a straight-line border between the burned and nonburned parts of J. P.’s hands and that usually indicated that somebody had been di pped in water. Accidental burns resulting5 from a fall or running water ge nerally seem to be more uneven. Dr. Dunkelman opined that based on J.P.’s injuries, if the temperat ure of the water was 110 degrees then J.P.’s hands had to have been completely under water for at least 30 seconds. Appellant did not present a defense or call any witnesses.
PROCEDURAL BACKGROUND Before trial began, appellant requested a hearing on the admissibility of his statement on the grounds that he was not properly advised of his rights under Miranda
, and that the statement was not made voluntarily. ( Miranda, supra, 384 U.S. 436.) The court conducted a hearing under Evidence Code section 402, to determine the circumstances surrounding the interview, i. e., whether the interview was a custodial interrogation and whether the statement was involuntary. At the hearing under Evidence Code s ection 402, Deputy David Sotomayor from the Los Angeles County Sheriff’s Department testified that he resp onded to a radio call regarding an incident involving a two-yea r-old child and learne d the child had been transported to Whittier Presbyterian Hospital. Upon arriving at the hospital he saw appellant in a room next door to where J.P. was being treated for his burns. Antonio P. and Venus L. were very upset when they arrived at the hosp ital and wanted to speak to appellant. Deputy Sotomayor told them the matter was unde r investigation and not to speak with appellant. A deputy stood in th e hallway between the two hospital rooms for safety reasons. Deputy Sotomayor gathered information from the fire department personnel, paramedics and the doctor. Afte r speaking with the nurse he asked appellant what happened at the residence on Redcoach Lane. Deputy Sotomayor testified that he considered appellant detained at this point because the child could not speak and Deputy Sotomayor needed to find out what happened back at the house. At approximately 11:05 a.m., while sti ll at the hospital, Deputy Sotomayor contacted the Special Victims Bureau. Ve nus L. accompanied J.P. when he was
transferred to the Grossman Burn Center, and Antonio P. left to take care of child care
issues related to the other children. At th at point, Deputy Sotomayor contacted appellant and “asked him if he had a ride.” Appellant said he was unable to contact his father and6 asked Deputy Sotomayor for a ride back to the Redcoach Lane house where all his belongings were located. Deputy Sotomayor testified that when ever he put anyone in his car it was his custom and practice to do a quick pat down to make sure they had no weapons. He did not take anything away from appellant and di d not handcuff him. Deputy Sotomayor left the hospital at approximately 1: 15 p.m. and parked outside
the house on Redcoach Lane. He did not let appellant leav e the car for his own safety because Antonio P. was at the house. The Sp ecial Victims Bureau personnel showed up approximately 10 to 15 minutes later. Appellant never asked to eat or go to the bathroom while with Deputy Sotomayor. Detective Garcia took appellant inside the house. When Detective Garcia arrested appellant at approximately 4:45 p.m., Deputy Sotomayor handcuffed him and transported him to the police station.
Detective Garcia testified that she was th e investigating officer on the case. When
she arrived at the Redcoach Lane residence she saw Deputy Sotomayor in his patrol car, appellant sitting in the back seat, and Antonio P. in the front yard. When she first contacted appellant in the poli ce car she told him he was not under arrest and that she
needed to talk to him about what ha ppened to J.P. Appellant was not handcuffed at this time a nd sat down at the kitchen table to talk
with Detective Garcia. The interview was reco rded. Appellant was emotional but said he felt comfortable speaking to Det ective Garcia. Detective Garcia testified that she did not make any promises to appella nt regarding his case, and di d not deprive him of food, water, or bathroom breaks. After the interv iew in the kitchen was completed, appellant did a walk-through in the bathroom where he demonstrated what happened to J.P. Appellant agreed to have the demonstra tion video-recorded by Sergeant Fraijo.
Detective Garcia testified that she did no t initially consider appellant a suspect and
interviewed him because she wa nted to know what happened and he wa s the only person
with J.P. at the time of the incident. He b ecame a suspect and was arrested when he told
the truth about the incident. The prosecutor argued that Miranda warnings were unnecessary because appellant was kept in a separate room from J.P.’s parent s for his own safety, the period of detention7 was reasonable, and appellant was comfortable speaking to Detective Garcia. There was no evidence that appellant was coerced in any way that would make the statements involuntary. Appellant’s counsel argued that appellant’s extended detention exceeded the permissible bounds of a Terry investigative stop and “the detention became a de facto arrest simply by the passage of time.” ( Terry v. Ohio (1968) 392 U.S. 1.) Finding that appellant was not in cu stody and that the questioning was not a custodial interrogation, the court found no ev idence that appellant was deprived of his
Miranda rights or that any statements were involuntarily made.
DISCUSSION I. The Trial Court Properly Admitte d Appellant’s Statement to Police Appellant contends the court committed reve rsible error in de nying his motion to suppress all evidence of the statements he gave police. Appellant raises the same issues argued below: that the interview with po lice was a custodial interrogation for which a
Miranda warning should have been issued, and th e tactics used by the police were so coercive that the statement was involuntary. A. Standard of Review
The standards of review for Miranda and voluntariness challenges are similar: For the former: “[W]e review i ndependently a trial court’s ru ling on a motion to suppress a
statement under Miranda. [Citation.] In doing so, however, ‘we accept the trial court’s resolution of disputed facts a nd inferences, and its evaluations of credibility, if supported by substantial evidence.’ [Citation.]” ( People v. Guerra (2006) 37 Cal.4th 1067, 1092– 1093.) For the latter: “We review independ ently a trial court’s determinations as to whether coercive police activity was present and whether the statement was voluntary. [Citation.] We review the trial court’s findi ngs as to the circumstances surrounding the confession, including the characteristics of the accused and the details of the interrogation, for substantial evidence. [Citati on.] ‘[T]o the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence.’ [Citation.]” ( Id. at p. 1093.)8 B. Appellant’s Police Interview Wa s Not a “Custodial Interrogation” To invoke the protections of Miranda, a suspect must be subjected to a “custodial interrogation.” This occurs when a person is “taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.” ( Miranda, supra, 384 U.S. at p. 444.) “[T]he ultimate inquiry is simply wh ether there is a ‘formal arrest or restraint on freedom of movement’ of the degree a ssociated with a formal arrest.” ( California v.
Beheler (1983) 463 U.S. 1121, 1125, quoting Oregon v. Mathiason (1977) 429 U.S. 492, 495.) Where no formal arrest has taken place, the pertinent question is “how a reasonable [person] in the suspect’s position would have understood [the] situation.” ( Berkemer v. McCarty (1984) 468 U.S. 420, 442.)
California courts have identified a number of factors relevant to this
determination. While no one factor is conclusive, relevant factors include: ‘“(1) [W]hether the suspect ha s been formally arrested; (2 ) absent formal arrest, the length of the detention; (3) the location; (4) th e ratio of officers to suspects; and (5) the demeanor of the officer, including th e nature of the questioning.’” ( People v. Pilster (2006) 138 Cal.App. 4th 1395, 1403.) Here, the factual circumstances included: Appellant was not placed under arrest until approximately 4:45 p.m. Appellant was not ha ndcuffed or arrested at the hospital, or at any time while in the presence of Depu ty Sotomayor. He was already in a different room from where J.P. was being treated when Deputy Sotomayor arrived at the hospital, and was kept apart from J.P.’s parents for hi s own safety because they were extremely upset. When J.P. was transported to a different hospital appellant asked Deputy Sotomayor for a ride back to the Redcoach Lane residenc e because appellant was unable to contact his father. Deputy Sotomayor testif ied that whenever he transported people in his car he always patted them down for weapons . He did so in this case and there was no evidence that he took any of appellant’s pr operty from him. Deputy Sotomayor did not let appellant get out of the car when they a rrived at the Redcoach Lane residence because Antonio P. was in the front yard. Detective Ga rcia told appellant wh en he was seated in the patrol car that he was not under arrest. The interview took place at the Redcoach9 Lane residence while the participants were se ated at the kitchen table. There were two detectives and another officer present duri ng appellant’s interview but the transcript shows that aside from two questions asked by Sergeant Fraijo while video recording appellant’s bathroom walk through, De tective Garcia was the only officer who questioned appellant. Detective Garcia did press appellant for more details but we do not discern any overbearing demeanor from her. Her questioning does not appear to be compulsive in any sense. “General on-the- scene questioning as to the facts surrounding a crime or other general questioning of citizens in the fact-finding process” is not affected by the holding in Miranda . ( Miranda, supra, 384 U.S. at p. 477.) The only factor that supp orts appellant’s position and that which he stresses on appeal is the length of the detention. Appella nt contends the duration of time he spent at the hospital, in the patrol car, and at the residence during the questioning, would lead a reasonable person to consider themselves in custody and not free to leave. However, in deciding the cust ody issue for purposes of Miranda , it is the totality of circumstances that is relevant; “no one factor is dispositive.” ( People v. Boyer (1989) 48 Cal.3d 247, 272.) An d this one factor—length of dete ntion—is rationally explainable here. Appellant had no means of transpor tation and remained at the hospital while Deputy Sotomayor was gathering inform ation from the paramedics and hospital personnel. Appellant asked Deputy Sotomayo r for a ride back to the Redcoach Lane residence. For appellant’s safety he rema ined in the car outside the house because Antonio P. was in the front yard. Therefore, given the absence of objective indicia of arrest and considering the totality of the circ umstances, we conclude that while appellant was detained, he was not in custody for Miranda purposes. C. Appellant’s Statement to Police Was Voluntary Appellant contends the totality of the ci rcumstances surrounding the interview by
Detective Garcia indicate the statement was involuntary and the trial court committed reversible error in denying his motion to exclude. We disagree. When appellant was questi oned, no guns were pointed at him, he was not at a police station, an d he was not handcuffed. For Miranda purposes, “the10 crucial consideration is the degree of coer cive restraint to which a reasonable citizen believes he is subject at the time of questioning .” ( People v. Taylor (1986) 178 Cal.App.3d 217, 230.) Appellant was told he di d not have to speak to Detective Garcia if
he did not want to and he was not under arrest. 3 Appellant was never promised anything
in return for his statement and was never thre atened throughou t the interview. There is
no indication that he asked for any food, drink, or break, a nd therefore no evidence that he was deprived of same. The evidence show ed that during the inte rview with Detective Garcia appellant stated, “It’s hard for me to tell anybody, but it’s easier to open up to you.”
The court below could reas onably conclude that appella nt was comfortable talking to Detective Garcia and voluntarily made th e statement. “While we must review the record and make an independent determination of the question, we, . . . ‘give great weight
to the considered conclusions’ of a lower court that has previously reviewed the same evidence. [Citation.]” ( People v. Jennings (1988) 46 Cal.3d 963, 979.) We find no error in the trial court’s ruling.
II. Ineffective Assistance of Counsel Appellant contends that tria l counsel provided ineffective assistance of counsel in (1) failing to attach a copy of the transcript of the poli ce-recorded statement to his motions to suppress or to have a copy of the transcript admitted at the hearing, and (2) failing to request a jury in struction on the defense of accident in accordance with
Judicial Council of California Criminal Jury Instructions , CALCRIM No. 3404. 4

3 Detective Garcia testified at the Ev idence Code section 402 hearing that she believed she also told appellant that he was fr ee to leave but that was not included in the transcript of the recorded interview.

4 CALCRIM No. 3404 provides in part as fo llows (as to general or specific intent crimes): “[The defendant is not guilty of _______ <insert crime [ s ] > if (he/she) acted [or failed to act] without the intent required for that crime, but acted instead accidentally. You may not find the defe ndant guilty of ________ <insert crime [ s ] > unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.]”11 When a defendant raises a claim of ine ffective assistance of counsel, he must establish that his ‘“counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel’s unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome.’” ( In re Cudjo (1999) 20 Cal.4th 673, 687; accord, People v. Ledesma (1987) 43 Cal.3d 171, 217–218.) ““‘The benchmark for judging any
claim of ineffectiveness must be whether co unsel’s conduct so u ndermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’”” ( In re Cudjo, supra, at p. 687; accord, Strickland v. Washington (1984) 466 U.S. 668, 686.) There is no merit to appellant’s conten tion that the absence of the transcript
“defeated what was otherwise th e very strong prospects of su ccess for the motions.” On the question of voluntariness the transcript wo uld not have assisted appellant because it would clearly have shown that Detective Ga rcia’s questioning of appellant was not threatening or coercive and appellant felt co mfortable talking to her. The transcript indicated that Detective Garcia specifically told appellant at the beginning of the
interview that he was not under arrest. Th ere is no reasonable probability that, but for
counsel’s failure to seek admission of the transcript, the ruling on the motions to suppress, or indeed the trial, would have resulted in a more favorable outcome. ( In re Cudjo, supra, 20 Cal.4th at p. 687.) Nor is there any merit to appellant’s cl aim that trial counsel was ineffective for failing to request a jury instruction on the de fense of accident. A court may refuse an instruction offered by the de fendant if it is not supporte d by substantial evidence. ( People v. Hovarter (2008) 44 Cal.4th 983, 1021.) Appellant contends that trial counsel ar gued the affirmative defense of accident
but it is “axiomatic that ar gument is not evidence.” ( People v. Breaux (1991) 1 Cal.4th 281, 313.) Contrary to appellant’s contenti on, the defense was not “a most viable one”
and the recorded statement did not “set forth how he accide ntally caused the burns to [J.P.].” A trial court has a duty to instruct on all general principles of law that are closely12 and openly connected to the fact s and that are necessary for the jury’s understanding of
the case. But the substantia l evidence in this case (incl uding the transcript of the recorded statement) reflected that appellant held J.P.’s ha nds under hot water. We are also satisfied that the failure to give the ac cident instruction did not contribute to the verdict. ( Chapman v. California (1967) 386 U.S. 18, 24.)
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

________________ _____, J. *
FERNS
We concur:

_____________ _______________, P. J.
BOREN

___________________ _________, J.
CHAVEZ

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.