In re M.S.
Plaintiff and Respondent,
v.
M.S.,
Defendant and Appellant.
M.S. appeals an order of the juvenile court sustaining the allegations of a
This appeal concerns the tragic death of Baby Boy A. following his home birth to then 15-year-old M.S. Frightened that her parents would learn that she had been pregnant and given birth, M.S. inflicted fatal cuts on A.’s throat, severing his carotid artery and trachea. M.S. thereafter placed his body in a plastic bag and concealed the bag in the bathroom vanity. During police questionings, M.S. initially asserted that the infant was born stillborn but then stated that she accidentally wounded him when she cut the umbilical cord. When confronted with the medical examiner’s findings, however, M.S. finally admitted that she used a kitchen knife to cut the infant’s throat. On appeal, M.S. challenges the juvenile court’s finding of malice, as well as the court’s Fourth and Fifth Amendment evidentiary rulings, among other issues.
FACTUAL AND PROCEDURAL HISTORY
In the morning of January 17, 2016, 15-year-old M.S., her parents, and her siblings appeared at the Marian Medical Center in Santa Maria. M.S. complained of abdominal pain and vaginal bleeding. An examination by physician’s assistant Ashley Bridges revealed an umbilical cord protruding from M.S.’s vagina. M.S. complained that she had been suffering pain and bleeding since the early morning. When she sat on the toilet, she felt the urge “to push.” As she did, she felt “a ripping sensation” and a baby emerged. M.S. stated that the baby was not breathing and had no heartbeat.
M.S. informed Bridges that her brother had taken the plastic bag containing the infant’s body and disposed of it. In the presence of his mother, Bridges spoke with M.S.’s brother. He stated that while M.S. was in the bathroom, she asked him to retrieve scissors and a bag. He could not locate scissors, however, and therefore brought her a kitchen knife and a bag. He denied disposing of the bag thereafter.
Bridges then spoke with M.S. again and asked her purposes for scissors or a knife. M.S. responded that she used the knife to cut her clothing. Bridges asked M.S. if she used the knife to cut the umbilical cord. M.S. denied using the knife for that purpose and explained that she pulled the cord to detach it. Bridges continued to question M.S. to determine the whereabouts of the infant’s body. M.S. replied that she may or may not have seen the body and may have flushed it in the toilet. M.S. also denied knowing that she was pregnant. Hospital personnel summoned police officers.
That afternoon, Santa Maria Police Detectives Andrew Brice and Michael McGehee were informed that a woman had given birth and that the infant was missing or dead. After speaking to the hospital nursing staff, the officers visited M.S.’s hospital room, the door to which was open. The detectives spoke with M.S. in a recorded interview; they had “open mind[s]” and were considering “all possibilities,” including “a medical event.”
Criminalist technician Crystal Krausse arrived at the hospital to take photographs of M.S., including photographs of her abdomen that revealed two discolored areas. M.S. did not object to the photographs and cooperated in moving her clothing aside. The photographs were taken as M.S. lay in bed and she was not requested to disrobe.
Meanwhile, other Santa Maria police officers had visited the apartment to see if the infant was alive and, if so, to render aid. M.S.’s father gave the officers permission to enter the apartment and signed a consent-to-search form. When an officer thought he saw the body of a baby inside a clear trash bag in the bathroom, he “clos[ed] down the scene” to seek a search warrant. When Detective Brice arrived at the apartment later, he confirmed with M.S.’s father that he consented to a search of his apartment. This conversation was recorded.
Lydia Magdaleno, a criminalist technician for the Santa Maria Crime Lab, visited the apartment in the early evening to take photographs. She discovered a plastic bag containing bloody tissues in the bathroom. On a maroon-colored trash can in the bathroom, Magdaleno saw blood drops and dribbles. She looked inside the bathroom vanity, behind shoes that were stored there. She found a plastic bag that appeared to contain an infant’s body.
Meanwhile, Brice returned to the hospital to request consent from M.S. to search a cellular telephone that he found in the family’s apartment. M.S. agreed to a search of the telephone as well as her school laptop computer. She signed a consent-to-search form after Brice reviewed the form with her. M.S. then provided her telephone’s password to Brice.
Santa Barbara Sheriff’s Deputy Chad Biedlinger was dispatched by the coroner’s office to the apartment. He removed the plastic bag containing the infant’s body and placed it on a body bag on the bed. Biedlinger briefly examined and took photographs of the infant’s body. He then placed the body inside the body bag and took it to the coroner’s office.
Detective McGehee later found a straight-edged broccoli knife among articles of clothing in the bathroom. Bloodstains were on the knife handle and blade. A search of the apartment pursuant to a search warrant revealed luminol-activated blood drops on the walls and floor of the bathroom.
On January 19, 2016, Doctor Manuel Montez, the Santa Barbara County forensic pathologist, performed an autopsy on the infant. Montez estimated that the infant was 34 or 35 weeks old and viable at the time of his death. The infant had a seven centimeter cut across his neck that extended four millimeters into his spine, severing his carotid artery and trachea and depleting his blood volume. Montez also opined that the infant had “hesitation marks” across his torso. He concluded that the fatal neck wound may have been caused by two or three strikes. Based upon the hemorrhage at the site of injury and the infant’s aerated lungs, Montez opined that the infant was alive at the
January 20, 2016, Recorded Video Reenactment
At the time police officers served a search warrant for a search of the family’s apartment, they requested that M.S. reenact the occurrences that led to the infant’s death. The request was made in the presence of M.S.’s parents. McGehee informed M.S. that she was “not in any trouble right now,” was “free to leave,” and did not have to participate. M.S. agreed to participate and used a toy doll to reenact the birth. During the reenactment, she stated that the baby was born stillborn and “wasn’t moving at all.” M.S. explained that she used a sawing motion to cut the umbilical cord with a kitchen knife that her brother provided.
January 27, 2016, Police Interview
On January 27, 2016, McGehee and Brice interviewed M.S. in a video-recorded interview. At the inception of the interview, McGehee informed M.S. of her rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. M.S.’s parents were present in a waiting room during the interview. Although her parents were not fluent in the English language, M.S., a high school student, spoke English and answered the detectives’ questions.
Initially, M.S. claimed that the baby was born stillborn (“he hit his head” during birth) and that she used the knife to cut the umbilical cord. She also admitted that she knew that she was
January 27, 2016, Psychologist Interview
Immediately following the interview, Doctor James Tahmisian conducted a mental status interview of M.S. to determine if she was psychotic. During the interview, he asked M.S. if she believed the baby might return to life after his injuries. She replied affirmatively, but then stated that she wanted the baby to return to life because she regretted her actions. Tahmisian concluded that M.S. did not display any psychotic thought processes; she responded to his questions although she was tearful and obviously upset.
Other Evidence
M.S.’s boyfriend testified that he and M.S. were sexually active for several years without the use of birth control. On an earlier occasion, he asked M.S. if she thought she was pregnant. She replied that she did not think so. In 2015, M.S. discussed with her friends whether she was pregnant then, but she was not. In 2015, a friend accompanied M.S. to purchase a pregnancy test. The test result was negative. M.S. also visited Planned Parenthood for a pregnancy test, but was unsuccessful in obtaining a test. She was not pregnant then either.
Several months prior to giving birth, M.S. texted her boyfriend and informed him that he would become “a baby daddy” and that she had breast milk. DNA testing of the infant’s body confirmed that M.S.’s boyfriend was the biological father.
M.S. presented expert witness testimony that she suffered from pervasive pregnancy denial, a dissociative disorder, and was in a dissociative state when she gave birth. She presented evidence that neither her parents, her friends, nor an examining physician (on an unrelated matter) knew that she was pregnant. M.S. also provided evidence that she suffered from childhood sexual abuse, sometime command hallucinations, and a history of cutting herself, among other psychological problems.
Jurisdiction Order and Appeal
Following a lengthy and contested jurisdictional hearing, the juvenile court found that M.S. committed second degree murder and that she personally used a knife during the offense. In its written ruling, the court stated that M.S. harbored express malice but that the prosecutor failed to prove beyond a reasonable doubt that M.S. acted with the requisite deliberation necessary for first degree murder. The court also stated that it considered but rejected the defense argument as unconvincing that M.S. lacked the required mental state for murder.
Following a contested disposition hearing, the juvenile court declared M.S. a ward of the court and ordered her placement at Casa Pacifica.
M.S. appeals and contends that 1) insufficient evidence of malice supports the jurisdiction finding; 2) police officers violated her Fourth and Fifth Amendment rights by speaking with her in the hospital and obtaining consent to search her cellular
DISCUSSION
I.
M.S. argues that there is insufficient evidence that she possessed the express intent to kill to support the malice element of second degree murder. Preferring a finding of involuntary manslaughter, she asserts that she accidentally cut the infant’s neck when she cut the umbilical cord. M.S. contends that the evidence obtained from her cellular telephone and the interrogations was obtained in violation of her Fourth and Fifth Amendment rights and therefore must be disregarded.
In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57; People v. Johnson (2015) 60 Cal.4th 966, 988.) Our review is the same in a prosecution primarily resting upon circumstantial evidence
Second degree murder is an unlawful killing of a human being with malice aforethought. (
Sufficient evidence exists apart from any of M.S.’s admissions that she intended to kill her infant. The autopsy
Moreover, the false statements that M.S. gave to hospital personnel allow an inference of her consciousness of guilt. M.S. at times stated that her baby had been born stillborn, that she may have flushed it in the toilet, and that she detached the umbilical cord by pulling it. The juvenile court properly considered her various and inconsistent explanations to determine guilt. (1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 111, p. 938.)
II.
M.S. argues that the police officers violated her Fourth and Fifth Amendment rights by speaking to her in her hospital room, obtaining her consent to search her cellular telephone, and photographing parts of her body. She asserts that she had a reasonable expectation of privacy in her hospital room and thus a search warrant was required to enter the room, question her, obtain her consent to search her telephone, and intrusively photograph her.
Moreover, the officers’ entry into M.S.’s hospital room did not violate her reasonable expectation of privacy. (People v. Brown (1979) 88 Cal.App.3d 283, 290-292.) Detectives Brice and McGehee were dressed in plain clothes, the hospital room door was open, a nurse was present at some point, and the detectives knocked and announced their presence. Under the circumstances, the hospital room was within the joint dominion of the hospital and M.S. (Id. at p. 291.) “[N]o Fourth Amendment violation occurs when a nurse permits an officer to enter a sentient patient’s hospital room for purposes unrelated to a search, [and] the patient does not object to the visit.” (Id. at p. 292.) At the time the officers entered M.S.’s hospital room, they were attempting to determine whether “a medical event” [still birth] or a crime had occurred. M.S. also did not object to the officers’ presence.
In addition, it was objectively reasonable for Brice “to believe that the person giving consent [for the telephone search] had authority to do so, and to believe that the scope of the consent given encompassed the item searched.” (People v. Jenkins (2000) 22 Cal.4th 900, 974.) Regarding this issue, we defer to the juvenile court’s express and implied findings of fact
We need not discuss whether the photographs taken of M.S.’s stomach and groin required the issuance of a search warrant. The photographs taken from a cooperative M.S. established nothing of significance to the prosecution; that she had recently given birth was not contested and was established by overwhelming evidence. Assuming it was error to admit evidence of the photographs, any error was harmless beyond a reasonable doubt and could not have contributed to the jurisdiction finding.
III.
M.S. asserts that she was in custody when she participated in the video reenactment of the birth and that the officers’ failure to administer Miranda rights violated her Fifth Amendment rights.
When officers searched the family’s apartment pursuant to a search warrant, they served M.S.’s parents with the search warrant and advised that they would like to speak with M.S. Detective McGehee asked M.S. to demonstrate in a video-recording what occurred with her infant. He informed her that
In ruling on M.S.’s suppression motion, the juvenile court noted that the contact occurred in M.S.’s home and the police were aware of her obvious age. M.S. and her parents consented to the reenactment after being informed that M.S. did not have to participate. The court found that the officers “took great care to make sure this was not a coercive environment [and were] sensitive to [M.S.’s] physical condition.” The court then denied the suppression motion because it concluded that M.S. was not in police custody at the time.
In our independent review, the juvenile court’s ruling was proper and supported by substantial evidence. (People v. Davidson (2013) 221 Cal.App.4th 966, 970 [standard of review].) It is well settled that Miranda advisements are required only during custodial interrogations. (Ibid.) Whether a person is in custody is an objective test, i.e., whether there was a formal arrest or restraint on freedom of movement to the degree associated with a formal arrest. (Id. at pp. 971-972.) Factors to consider include whether there has been a formal arrest, the location of the detention, the ratio of officers to the individual, and the demeanor of the officer or officers, among other factors. (Id. at p. 972.)
IV.
M.S. contends that she did not validly waive her Miranda rights during the January 27, 2016, formal police interview. She asserts that she was physically exhausted from giving birth 10 days prior and suffered from posttraumatic stress disorder. She argues that the detectives used coercive tactics and points out that she had no prior experience with law enforcement.
To establish a valid waiver of Miranda rights, the prosecution must show by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary. (People v. Nelson (2012) 53 Cal.4th 367, 374-375 [interrogation of 15-year-old charged with murder and burglary].) Determining the validity of a Miranda rights waiver requires an evaluation of the defendant’s state of mind and an inquiry into the circumstances of the interrogation. (Id. at p. 375.) When a juvenile’s waiver is at issue, consideration must be given to factors such as the juvenile’s age, experience, education, background and intelligence, and whether he or she has the capacity to understand the Miranda warnings, the nature of their Fifth
The juvenile court determined that M.S. made a knowing, intelligent, and voluntary waiver of her Miranda rights. The record supports this determination. At the outset of the interview, McGehee asked how M.S. was feeling and if she had a counseling appointment that day. Following her statement that she felt okay, McGehee read her Miranda rights. M.S. responded affirmatively that she understood her rights and wanted to speak with the detectives. The detectives invited M.S. to call them by their first names and, as the juvenile court concluded, the interview was friendly and conducted by detectives with whom M.S. was now familiar. The detectives offered no promises of leniency in exchange for M.S.’s testimony nor did they threaten to prosecute her for a greater offense if she did not speak with them. We reject M.S.’s contention that McGehee’s offer to obtain counseling for M.S. (who already was in counseling) was an offer of leniency. M.S. was 15 years old and a sophomore in high school. She spoke rationally in the English language during the interview and never indicated that she wanted to stop the questioning or see her parents. The prosecution met its burden of establishing that M.S.’s waiver was knowing, intelligent, and voluntary.
M.S. argues that the juvenile court erred by admitting evidence of her interview with Doctor Tahmisian. She contends that her statements to him were not knowing and voluntary.
At the outset of Tahmisian’s interview with M.S., he informed her of her Miranda rights and that her statements to him would not be kept confidential. In permitting evidence of this interview, the juvenile court concluded it was a continuation of the prior interview. The court added that M.S.’s statements may not be of significance at the jurisdiction hearing.
Assuming for purpose of argument that M.S.’s statements were inadmissible, any error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The evidence establishes that M.S. cut her infant’s throat with two or three strikes, severing his carotid artery and trachea. The juvenile court rejected M.S.’s theory of an accidental cutting. It also rejected the evidence that she did not have the requisite mental state to commit second degree murder.
VI.
M.S. contends that she is entitled to remand to allow the juvenile court to make an eligibility determination regarding mental health pretrial diversion according to newly enacted
Effective June 27, 2018, the Legislature enacted a mental health diversion program for defendants with diagnosed and
If the trial court grants pretrial diversion, the defendant “may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources” (
People v. Frahs, supra, 27 Cal.App.5th 784, 791, review granted, held that the mental health diversion law applies retroactively to those defendants whose appeals are pending at the time of the statute’s enactment. “[T]he Legislature ‘must have intended’ that the potential ‘ameliorating benefits’ of mental health diversion . . . ‘apply to every case to which it constitutionally could apply.’” (Ibid.) Frahs relied upon our Supreme Court’s holding in People v. Superior Court (Lara) (2018) 4 Cal.5th 299, holding that a juvenile transfer hearing must be made available to all defendants whose convictions are not yet final on appeal. (Frahs, at p. 791.)
Effective January 1, 2019,
More importantly, however, distinctions between adult criminal prosecutions and juvenile delinquency proceedings preclude application of the mental health diversion law to juvenile cases. Indeed,
People v. Vela (2018) 21 Cal.App.5th 1099, 1104-1105, summarizes the distinctions between the processes and purposes of the juvenile adjudication system versus adult criminal prosecutions:
“Generally, any person under the age of 18 who is charged with violating a law is considered a ‘minor.’ (See § 602.) A ‘juvenile court’ is a separate, civil division of the superior court. (§ 246.) A prosecutor charges a minor with an offense by filing a juvenile petition, rather than a criminal complaint. (See §§ 653.7, 655.) Minors ‘admit’ or ‘deny’ an offense, rather than plead ‘guilty’ or ‘not guilty.’ (§ 702.3.) There are no ‘trials,’ per se, in juvenile court, rather there is a ‘jurisdictional hearing’ presided over by a juvenile court judge. (§ 602.) The jurisdictional hearing is equivalent to a ‘bench trial’ in a criminal court. (See Cal. Rules of Court, rule 5.780.) Although a juvenile court judge adjudicates alleged law violations, there are no ‘conviction[s]’ in juvenile court. (§ 203.) Rather, the juvenile court determines—under the familiar beyond the reasonable doubt
standard and under the ordinary rules of evidence—whether the allegations are ‘true’ and if the minor comes within its jurisdiction. (See § 602 et seq.)
“There is no ‘sentence,’ per se, in juvenile court. Rather a judge can impose a wide variety of rehabilitation alternatives after conducting a ‘dispositional hearing,’ which is equivalent to a sentencing hearing in a criminal court. (§ 725.5; In re Devin J. (1984) 155 Cal.App.3d 1096, 1100 [202 Cal.Rptr. 543].) In the more serious cases, a juvenile court can ‘commit’ a minor to juvenile hall or to the Division of Juvenile Justice (DJJ), formerly known as the California Youth Authority (CYA). In order to commit a minor to the DJJ, the record must show that less restrictive alternatives would be ineffective or inappropriate. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576 [258 Cal.Rptr. 540].) The DJJ, rather than the court, sets a parole consideration date. DJJ commitments can range from one year or less for nonserious offenses, and up to seven years for the most serious offenses, including murder. (See Cal. Code Regs., tit. 15, §§ 4951-4957.) A minor committed to DJJ must generally be discharged no later than 23 years of age. (§ 607, subd. (f).)”
The purpose of the mental health diversion statute is to promote “[i]ncreased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.” (
Here the juvenile court imposed a rehabilitation program for M.S. consistent with the purposes of the juvenile law. (
The juvenile court’s order is affirmed.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
I have signed and I concur with the majority opinion. There is no need to reach the constitutionality of the newly enacted mental health diversion statute. (See Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1102.) My concurrence should not be considered an opinion that the subject statute is constitutional.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
I have signed and I concur with the majority opinion. For those reasons expressed therein, there is no need to reach the issue of the applicability of the newly enacted mental health diversion statute to juvenile proceedings. I therefore express no opinion on that subject in accordance with the “‘cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more.’ [Citation.]” (People v. Contreras (2018) 4 Cal.5th 349, 381.)
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
Superior Court County of Santa Barbara
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.