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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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,                                                          B240698

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA118830)
         v.

CARL JOSEPH REYES,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior 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, Dane 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.




                                                       ******
       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 bodily 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 excluded 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 Venus L. and their four children lived on
Redcoach Lane in Whittier. Appellant was hired on September 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 children 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 school. Appellant and J.P. played outside for
about 10 minutes before J.P. went to the bathroom. Appellant told J.P. to wash and dry
his hands after urinating. J.P. needed help to use the sink because 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 February 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.

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J.P. climb up onto the sink. Appellant ran the hot water in the sink and J.P.’s hands were
badly burned.
       Appellant called Antonio P. and told him there had been an accident when he tried
to give J.P. a bath. Antonio P. told appellant 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 transferred to the Grossman Burn Center in Santa
Ana.
       Detective Claudia Garcia is a child abuse investigator with the Los Angeles
County Sheriff’s Department. When she responded to the residence 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 sink. 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 residence. They were seated at the kitchen
table. The interview was recorded and the audiotape was played for the jury.
       According to the transcript of the interview, Detective 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 investigation 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 background information in response to
Detective Garcia’s questions. Then he said he took J.P. to the bathroom 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. crying. Detective Garcia told appellant that the
scenario he described was not consistent with the results of their investigation. She asked
if something happened and if appellant got frustrated or lost control. Appellant said he
was “really stressed lately.” Initially he was paid $250 each week but he was told his pay
was going to be cut. He got in trouble for some things that happened at the house and he
felt his work was not appreciated. When Detective Garcia asked appellant if he felt bad,

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he replied “I didn’t mean to hurt him,” and said 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 “kind 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 the bathroom to urinate he noticed that J.P. still
had food in his mouth. Appellant was angry. J.P. started to cry and struggled when the
water became hot while he was washing his hands. 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 easier to open up to
Detective Garcia. He was not a professional babysitter and was upset 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 minutes.” He turned off the hot water and put
cold water on J.P.’s hands and dried them. When he saw the skin was peeling he called
Antonio P.
       Detective Garcia asked appellant to show them the bathroom because J.P. was
taken to a burn center and it was important for them to know how it happened. Appellant
was “a little uncomfortable,” and said, “I should have thought twice about it. Honestly
that’s not me. I’m not really sure what happened. 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-recorded the demonstration by appellant 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 second-degree and some superficial third-degree
burns on his hands. Dr. Dunkelman qualified as an expert witness 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 dipped in water. Accidental burns resulting

                                               4
from a fall or running water generally seem to be more uneven. Dr. Dunkelman opined
that based on J.P.’s injuries, if the temperature 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 section 402, Deputy David Sotomayor from
the Los Angeles County Sheriff’s Department testified that he responded to a radio call
regarding an incident involving a two-year-old child and learned 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 hospital and wanted to speak to
appellant. Deputy Sotomayor told them the matter was under investigation and not to
speak with appellant. A deputy stood in the hallway between the two hospital rooms for
safety reasons. Deputy Sotomayor gathered information from the fire department
personnel, paramedics and the doctor. After 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 still at the hospital, Deputy Sotomayor
contacted the Special Victims Bureau. Venus 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 that point, Deputy Sotomayor contacted appellant
and “asked him if he had a ride.” Appellant said he was unable to contact his father and

                                             5
asked Deputy Sotomayor for a ride back to the Redcoach Lane house where all his
belongings were located. Deputy Sotomayor testified that whenever 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 did 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 leave the car for his own safety
because Antonio P. was at the house. The Special 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 the 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 police car she told him he was not under arrest and that she
needed to talk to him about what happened to J.P.
       Appellant was not handcuffed at this time and sat down at the kitchen table to talk
with Detective Garcia. The interview was recorded. Appellant was emotional but said he
felt comfortable speaking to Detective Garcia. Detective Garcia testified that she did not
make any promises to appellant regarding his case, and did not deprive him of food,
water, or bathroom breaks. After the interview 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 demonstration video-recorded by Sergeant Fraijo.
       Detective Garcia testified that she did not initially consider appellant a suspect and
interviewed him because she wanted to know what happened and he was the only person
with J.P. at the time of the incident. He became 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 parents for his own safety, the period of detention

                                             6
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 custody and that the questioning was not a
custodial interrogation, the court found no evidence that appellant was deprived of his
Miranda rights or that any statements were involuntarily made.
                                       DISCUSSION
I.     The Trial Court Properly Admitted Appellant’s Statement to Police
       Appellant contends the court committed reversible error in denying his motion to
suppress all evidence of the statements he gave police. Appellant raises the same issues
argued below: that the interview with police was a custodial interrogation for which a
Miranda warning should have been issued, and the 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 independently a trial court’s ruling on a motion to suppress a
statement under Miranda. [Citation.] In doing so, however, ‘we accept the trial court’s
resolution of disputed facts and 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 independently 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 findings as to the circumstances surrounding the
confession, including the characteristics of the accused and the details of the
interrogation, for substantial evidence. [Citation.] ‘[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.)



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       B.     Appellant’s Police Interview Was 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 whether there is a ‘formal arrest or restraint on
freedom of movement’ of the degree associated 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 has been formally arrested; (2) absent formal arrest, the
length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the
demeanor of the officer, including the 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 handcuffed or arrested at the hospital,
or at any time while in the presence of Deputy 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 his 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 residence because appellant was unable
to contact his father. Deputy Sotomayor testified 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 property from him. Deputy Sotomayor did not
let appellant get out of the car when they arrived at the Redcoach Lane residence because
Antonio P. was in the front yard. Detective Garcia told appellant when he was seated in
the patrol car that he was not under arrest. The interview took place at the Redcoach

                                               8
Lane residence while the participants were seated at the kitchen table. There were two
detectives and another officer present during appellant’s interview but the transcript
shows that aside from two questions asked by Sergeant Fraijo while video recording
appellant’s bathroom walk through, Detective 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 supports appellant’s position and that which he stresses on
appeal is the length of the detention. Appellant 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 custody 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.) And this one factor—length of detention—is rationally explainable
here. Appellant had no means of transportation and remained at the hospital while
Deputy Sotomayor was gathering information from the paramedics and hospital
personnel. Appellant asked Deputy Sotomayor for a ride back to the Redcoach Lane
residence. For appellant’s safety he remained 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 circumstances, 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 circumstances 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 questioned, no guns were pointed at him, he
was not at a police station, and he was not handcuffed. For Miranda purposes, “the

                                              9
crucial consideration is the degree of coercive 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 did 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 threatened throughout the interview. There is
no indication that he asked for any food, drink, or break, and therefore no evidence that
he was deprived of same. The evidence showed that during the interview 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 reasonably conclude that appellant was comfortable talking
to Detective Garcia and voluntarily made the 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 trial counsel provided ineffective assistance of counsel in
(1) failing to attach a copy of the transcript of the police-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 instruction 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 Evidence Code section 402 hearing that she
believed she also told appellant that he was free to leave but that was not included in the
transcript of the recorded interview.

4       CALCRIM No. 3404 provides in part as follows (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 defendant guilty of ________ <insert crime[s]> unless you are
convinced beyond a reasonable doubt that (he/she) acted with the required intent.]”

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       When a defendant raises a claim of ineffective 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 counsel’s conduct so undermined 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 contention that the absence of the transcript
“defeated what was otherwise the very strong prospects of success for the motions.” On
the question of voluntariness the transcript would not have assisted appellant because it
would clearly have shown that Detective Garcia’s questioning of appellant was not
threatening or coercive and appellant felt comfortable talking to her. The transcript
indicated that Detective Garcia specifically told appellant at the beginning of the
interview that he was not under arrest. There 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 claim that trial counsel was ineffective for
failing to request a jury instruction on the defense of accident. A court may refuse an
instruction offered by the defendant if it is not supported by substantial evidence.
(People v. Hovarter (2008) 44 Cal.4th 983, 1021.)
       Appellant contends that trial counsel argued the affirmative defense of accident
but it is “axiomatic that argument is not evidence.” (People v. Breaux (1991) 1 Cal.4th
281, 313.) Contrary to appellant’s contention, the defense was not “a most viable one”
and the recorded statement did not “set forth how he accidentally caused the burns to
[J.P.].” A trial court has a duty to instruct on all general principles of law that are closely

                                              11
and openly connected to the facts and that are necessary for the jury’s understanding of
the case. But the substantial evidence in this case (including the transcript of the
recorded statement) reflected that appellant held J.P.’s hands under hot water. We are
also satisfied that the failure to give the accident 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.

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