IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
December 15, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RASHELL LAVERN CLARKE, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Hull ,j.
P. v. Clarke CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Rashell Lavern Clarke of seven counts of felony child abuse (Pen. Code, § 273a, subd. (a); undesignated statutory references that follow are to the Penal Code) and found true the allegations that defendant inflicted great bodily injury as to each count (§ 12022.7, subds. (a) & (d)). The jury also convicted defendant of misdemeanor obstructing a police officer. (§ 148, subd. (a)(1).) As a consequence, the trial court sentenced defendant to a prison term of 22 years 8 months.
Defendant appeals, contending the trial court erred by (1) allowing a medical expert to testify that the children's injuries were "significant and substantial" and to state her medical diagnosis that the children suffered from child abuse, and (2) denying defendant's motion to suppress a police officer's recounting of injuries he noticed on the children found inside defendant's apartment.
We shall affirm the judgment.
Facts and Proceedings
Defendant and his wife, Cassandra Sotelo, are the parents of seven children: D., K., Am., I., R., Af., and Aj. D. and K. are twins and were five years old on December 8, 2008. That day, the twins returned to kindergarten in Redding, California, after a three-week absence from school. Their teacher noticed a very large, "fresh and . . . blistery" burn mark on D.'s arm. Due to nearby scarring, the wound "looked like it had been repeated . . . ." After the teacher examined D.'s arm, K. came up to show a scar on her own arm. One of the girls said that "her brothers and sisters had the same marks." The girls' teacher immediately went to the school office, where she reported the injuries to Child and Family Services (CFS).
At the time of the report, Redding Police Department Officer Will Williams served as a school resource officer and responded to D. and K.'s school. George Scripture arrived from CFS, and the two men spoke with D. and K. Officer Williams asked the girls if they had an "owie," and the girls displayed the injuries on their forearms.
Defendant walked into the room where Scripture and Officer Williams were talking to the girls. Defendant was angry and yelled very loudly that Officer Williams was a liar and had molested his children. Defendant called the officer "a fucking white devil" and "continued to talk about how [Officer Williams] had taken his kids' clothes off and molested them." Concerned for his own safety, Officer Williams called for police backup.
After asking defendant to leave the interview room approximately six times, Officer Williams finally succeeded in getting defendant into the hallway. Defendant continued to rant about Officer Williams molesting the girls and that someone had "planted information in their head." Defendant never asked about D. or K.'s welfare or whether they were hurt. Not until an additional police officer arrived, did defendant begin to calm down.
After speaking with Scripture, Officer Williams decided to remove D. and K. from the scene for their safety. Officer Williams then requested that defendant speak to him in a nearby faculty break room. Defendant stated that he could answer any questions "but he was busy and he had to get going." When the officer persisted in attempting to ask questions, defendant became angry and resumed his rant about Officer Williams being "the fucking white devil" who molested D. and K. Defendant assumed a fighting stance toward the officer. Defendant denied that D. and K. had injuries and repeated that the officer was a "fucking liar."
Officer Williams informed defendant that D. and K. were going to be taken into the custody of CFS and that the officer would need to locate defendant's other five children. Defendant responded that their mother was going to pick them up because the children "weren't going with fucking white devils . . . ." Shortly thereafter, defendant left the school.
While Officer Williams and Scripture were filling out paperwork, Sotelo came in and launched into a bizarre and profane rant in which she called the officer a liar and child molester. She also called Scripture "the devil." Sotelo left after Officer Williams threatened to arrest her.
Officer Williams asked other police officers to go to defendant's nearby apartment to check on defendant's other five children. After completing his paperwork, Officer Williams went to the apartment himself.
When Officer Williams arrived, he saw defendant and Sotelo arguing with one of the uniformed officers on the scene. Defendant called the police "fucking liars," and Sotelo threatened to call the news media. Defendant stated that his children were not in the apartment and that he only used the apartment's address to allow D. and K. to attend the nearby school. Defendant and Sotelo then departed.
The police attempted to make contact with anyone inside the apartment. The officers knocked on the door and windows, and they loudly demanded to speak with someone inside. No one opened the door or came to the windows. After 20 to 30 minutes, Officer Williams decided to enter the apartment. The police received a key from the apartment manager, but it did not open the apartment door because the locks had been changed. Officer Williams then requested the services of a locksmith. The officer testified that "at that point if there were--if the kids were hurt, I didn't feel like there was a reason for me to go in because the person I believed possibly could have hurt them wasn't there, so we had time. Anybody hiding the children in the apartment couldn't get out. We were concerned they could be hurt and if we left they'd come back and remove them, so we couldn't leave. I felt like whoever was in there, if they were in there, were obviously hiding them for a reason to prevent their discovery, so we requested a lock Smith [sic]."
The locksmith arrived and opened the door. Defendant's aunt, Nadine Bennett, was found standing at the top of the stairs. In an upstairs bedroom, Officer Williams saw five children on the bottom bunk of a bunk bed. One of the children was sleeping and the other four were "just frozen."
Officer Williams immediately noticed that the sleeping girl had the same sort of wound on her neck as D. and K. had on their arms. The officer then saw that all of the children had the same types of injuries on their arms and legs. Most of the wounds were four to six inches long and seemingly inflicted by "some sort of whipping like with a lash being done or a tool that would leave behind serious injury." The children were taken into the custody of CFS.
On December 11 and 12, 2008, defendant's seven children were examined by Dr. Deborah Stewart, the section chief and medical director of the Child and Adolescent Abuse Resource and Evaluation Center in the Department of Pediatrics at the University of California, Davis. Dr. Stewart's examination of the children revealed that they all suffered from numerous scars in a "classic" closed loop pattern that indicated being hit with a belt or extension cord. The depth of the scars indicated that they were caused by the application of "tremendous force." The wounds resulting in the scars would have been painful and bled. The wounds were deeper than the ones Dr. Stewart regularly saw on other abused children.
K. had loop pattern scars on her right forearm, shoulder blade, right buttock, right arm, and right thigh. The scars were deep and wide. When examined, K. was anxious, fearful, and unusually compliant. This observation caused Dr. Stewart to suspect that K. had witnessed violence against her siblings.
D. had numerous loop marks on her forearms, back, left shoulder, left buttock, right inner upper calf, and right chest. In particular, D.'s back had "many" such scars. D. also had a "very large" scar from a burn on her left calf. Although D. was polite and well behaved, she also was fearful and withdrawn.
Four-year-old I.'s "entire back" was covered with loop marks. She also had loop and linear marks on her left inner arm, upper arm, right wrist, side of her chest, and right thigh. Two of the loop marks on her thigh were recent. Dr. Stewart observed I. to be "extremely fearful," overly compliant during the examination, and well behaved.
Am. (I.'s twin sister) had an old loop mark scar on her left cheek and a new loop mark below her eye. These injuries stood out because Dr. Stewart did not often come across children who had been struck in the face with belts or similar objects.
Three-year-old R. suffered a "tremendous" number of scars. (RT 591) She had linear and loop marks covering her back and shoulders. She also had "large numbers" of scars on her legs, thighs, and buttocks. As with the other children, Dr. Stewart observed R. to have been fearful and overly compliant.
Two-year-old Aj. had a recent loop mark injury on his back when Dr. Stewart examined him. Aj.'s back displayed linear and loop shaped scars. Aj. also had loop mark scars on his buttocks, thighs, entire left arm, stomach, and across his chest. Dr. Stewart testified that a child of Aj.'s age would be at risk of damaged internal organs if tremendous force causing the types of scarring observed on the children were delivered to the stomach or belly area.
Af. (Aj.'s fraternal twin) had linear and loop mark scars on her shoulders, back, and buttocks. Af. also had very long scars extending across her chest to her buttocks. Dr. Stewart testified that Af.'s scars "went deeply into her skin causing the same kind of injuries as the other children."
The day after the children were taken into protective custody, defendant spoke with Redding Police Department Investigator Jon Poletski. During the interview, defendant admitted, "I have disciplined my kids with spankings before." Defendant further admitted using "a fake leather belt" to spank the children. Defendant described the belt as "just a little, like a female belt" that belonged to the children. He also denied hitting the children with a belt in the six months prior to their being taken into protective custody.
Expert Testimony Regarding the Children's Injuries
Defendant contends the trial court erred in allowing expert testimony by Dr. Stewart regarding the severity of the victims' injuries because physical injuries and scarring are not sufficiently beyond the common experience of a lay jury. Defendant further argues that the trial court should have precluded Dr. Stewart from testifying that the children's injuries were "substantial and significant" because such a conclusion amounts to a legal conclusion rather than a medical diagnosis. Defendant also contends that Dr. Stewart should not have been allowed to testify regarding her medical diagnosis that defendant's seven children suffered from "child abuse."
We reject the contentions.
Prior to trial, defense counsel moved to exclude any testimony by Dr. Stewart regarding whether the children suffered "serious or significant injury." The court denied the motion.
During trial, Dr. Stewart testified that each of defendant's children had "significant" or "substantial" injuries when she examined them. On cross-examination, Dr. Stewart acknowledged that "significant" and "substantial" were not medically defined terms.
Over objection by the defense, Dr. Stewart also testified that "[t]hese children definitely suffered from child abuse." This conclusion was "[b]ased on [her] physical exam, [her] experience . . . ." As Dr. Stewart explained, "The children had injuries that were significant for the diagnosis of child physical abuse." Dr. Stewart testified that her conclusion constituted a medical diagnosis rather than a legal conclusion:
"Q. . . . [T]here's a crime of child abuse in California, right?
"A. [by Dr. Stewart] Yeah. It's a very long set of statutes, though. You're making a real generalization. That's why I'm asking you for some clarification.
"Q. Right. And the clarification is this: That statute is this long statute. That's not the same as a medical diagnosis of child abuse, is it?
"A. No. They don't--they don't--you guys are much more specific. You have a lot of sub clauses.
"Q. We talked about what is legally child abuse, and your job as a medical professional is to talk about child abuse in the something nine?
"A. International Classification of Diseases Version Nine.
"Q. Which is, these are the things you can diagnose?
On recross-examination, defense counsel confirmed that Dr. Stewart's opinion regarding child abuse constituted a medical diagnosis.
Evidence Code section 801, subdivision (a), allows an expert witness to offer testimony "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . ."
As the California Supreme Court has explained, "the decision of a trial court to admit expert testimony 'will not be disturbed on appeal unless a manifest abuse of discretion is shown.' (People v. Kelly (1976) 17 Cal.3d 24, 39, and cases cited.) Second, 'the admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness"' (People v. McDonald (1984) 37 Cal.3d 351, 367.)" (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.)
"'Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in.' [Citation.]" (People v. Valdez (1997) 58 Cal.App.4th 494, 507.)
In an instructive case involving a charge of great bodily injury on elderly victims, the Court of Appeal held that Evidence Code section 801 "requires only that the expert be so sufficiently better informed than the juror that the opinion of the former would assist the deliberation of the latter. Medical doctors obviously have greater knowledge than lay jurors about the gravity of most injuries, particularly as they affect elderly persons. For this reason, medical experts have testified in the past regarding the substantiality of alleged great bodily injuries. [Citation.] We therefore decline to find it reversible error to admit expert medical testimony concerning the significance of the subject." (People v. Clay (1984) 153 Cal.App.3d 433, 459, italics omitted.)
With these principles in mind, we consider the admissibility of Dr. Stewart's medical expert testimony.
In this case, the prosecution bore the burden of proving that defendant "under circumstances or conditions likely to produce great bodily harm or death, willfully cause[d] or permit[ed] [the] child to suffer, or inflict[ed] thereon unjustifiable physical pain or mental suffering" on each of his seven children. (§ 273a, subd. (a).)
Defendant argues that the prosecution should not have been allowed to prove its case by introducing expert testimony that the wounds sustained by defendant's children were "substantial" or "significant." Specifically, defendant reasons that the causation and manifestation of injuries to young children are not beyond the knowledge which may be expected of lay jurors. We disagree.
As Dr. Stewart's testimony made clear, the injuries sustained by defendant's children were unusually severe when compared to other victims of child abuse. As Dr. Stewart testified, the marks and scars were "way above the 95th percentile of marks" that she usually observed on abused children. Lay jurors can benefit from expert testimony in helping them assess the severity of wounds to young children--especially for children who received unusually severe injuries.
So too, jurors can benefit from the assistance of a medical expert when determining how injuries might have been caused. Dr. Stewart's experience was relevant and helpful in assisting the jury to evaluate defendant's claims that he used only a light child's belt in hitting them and that more than six months had elapsed between the time he last hit them and when they were taken into protective custody. A lay jury cannot be expected to understand the pathology of wounds. Thus, the trial court did not abuse its discretion in admitting the expert medical opinion of Dr. Stewart.
The trial court also did not err in allowing Dr. Stewart to express her medical diagnosis that defendant's children had suffered child abuse within the clinical definition of the term. Having reviewed thousands of cases of child abuse, Dr. Stewart had expertise in diagnosing when children had been subject to abuse. As questioning by both the prosecution and defense made clear, Dr. Stewart's opinion was not offered as a legal conclusion that the children had suffered child abuse. Instead, the jury heard repeated clarification that Dr. Stewart offered her opinion only as a medical diagnosis that did not meet the same criteria as the legal definition of child abuse. The admission of Dr. Stewart's medical opinion did not constitute error.
We also do not find error in the eliciting of testimony by Dr. Stewart that the injuries sustained by each of defendant's children were "substantial" and "significant." Dr. Stewart's testimony largely hewed to clinical definitions of trauma and injuries. Indeed, the trial court even had the witness clarify several medical terms that she employed during her testimony. To sum up the observations of wounds recounted by Dr. Stewart, she used language to describe the gravity and severity of the wounds in non-technical words. Her description of the wounds as "substantial" and "significant" offered a lay jury means by which to comprehend the gist of her testimony about each child's injuries.
Although defendant complains that the terms "substantial" and "significant" lacked medical definition, he fails to cite any authority prohibiting an expert witness from attempting to summarize the basis for an opinion in a manner more readily understandable and meaningful for the jury. The very purpose of Evidence Code section 801 is to provide assistance to the jury in understanding matters subject to some measure of expertise. (People v. McAlpin, supra, 53 Cal.3d at pp. 1299-1300.) The value of this section would be undermined if medical experts were disallowed from providing any guidance about wounds and pathologies that did not rely exclusively on clinical medical definitions. Dr. Stewart's opinion that defendant's children suffered significant and substantial injuries was not improperly admitted.
The trial court did not err in allowing Dr. Stewart to testify regarding the nature and severity of the injuries suffered by defendant's seven young children. Based on this conclusion, we also reject defendant's claim that he received ineffective assistance of counsel for failure of his trial attorney to object to portions of Dr. Stewart's testimony regarding the children's injuries. As we noted, in part I A, defense counsel did object to the testimony he now challenges as inadmissible. However, as we have explained, the objections were non-meritorious because Dr. Stewart's testimony was properly admitted. Defendant did not receive ineffective assistance of counsel. (People v. Ochoa (1998) 19 Cal.4th 353, 463 ["Representation does not become deficient for failing to make meritless objections"].)
No more favorable result to defendant would have occurred even in the absence of Dr. Stewart's testimony regarding her medical diagnosis of child abuse and her opinion that the children all suffered substantial and significant injuries. The evidence graphically and unambiguously showed the numerous, serious physical injuries sustained by each of defendant's children. Combined with defendant's admission that he had used a belt to discipline the children, the evidence of child abuse was overwhelming. Even if the trial court had erred in admitting the entirety of Dr. Stewart's testimony, such error would have been harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]; People v. Watson (1956) 46 Cal.2d 818, 836.)
Motion to Suppress the Officer's Observation of the Children Inside Defendant's Apartment
Defendant next contends the trial court erred in denying his motion to suppress the testimony of Officer Williams regarding the injuries he observed on defendant's five children after entering defendant's apartment. We reject the contention.
We begin by addressing the Attorney General's argument that defendant's motion to suppress was untimely. As respondent correctly points out, a motion to suppress in a felony prosecution must be brought before commencement of trial. Subdivision (i) of section 1538.5 provides in pertinent part: "If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, or if the property or evidence relates to a felony offense initiated by indictment, the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time." (Italics added.)
In this case, defense counsel did not move to suppress Officer Williams's testimony until midtrial. The trial court ruled the motion to be untimely. On appeal defendant concedes as much when asserting that "[d]efense counsel's reasons for not filing a written motion to suppress before trial pursuant to Penal Code section 1538.5 were not reasonable or informed tactical reasons." In short, the trial court properly ruled the motion to suppress to have been untimely.
Having conceded the untimely nature of the motion to suppress, defendant argues that we must nonetheless reverse the judgment because he received ineffective assistance of counsel. "A defendant claiming ineffective assistance of counsel under the federal or state Constitution must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. [Citation.]" (People v. Ochoa, supra, 19 Cal.4th at p 414.) As we shall explain, defendant did not receive ineffective assistance of counsel because the motion to suppress was non-meritorious.
The evidence at trial showed that Officer Williams entered defendant's apartment without a warrant on December 8, 2008. Defense counsel sought to dispute that the warrantless entry was "based upon the exigency and the health of the children at risk." Specifically, the defense argued that Officer Williams's willingness to await the locksmith rather than kicking in the door to the apartment dispelled any legitimate claim of exigency. Defense counsel, however, did not argue that Officer Williams's concern for the welfare of defendant's five children who were not yet taken into protective custody was a sham or a pretense for entering the apartment. As we shall explain, Officer Williams's concern for the health and safety of the children allowed him to enter the apartment under the community caretaker exception to the warrant requirement of the Fourth Amendment.
As the California Supreme Court has explained, "When performing their law enforcement responsibilities, officers are required under the Fourth Amendment to obtain a warrant before searching a house or seizing personal effects; or it must be established they acted pursuant to a recognized exception." (People v. Ray (1999) 21 Cal.4th 464, 467-468.) Exceptions to the warrant requirement are made for exigent circumstances and for the police acting in their capacity as community caretakers. "When the police act pursuant to the exigent circumstances exception, they are searching for evidence or perpetrators of a crime. Accordingly, in addition to showing the existence of an emergency leaving no time for a warrant, they must also possess probable cause that the premises to be searched contains such evidence or suspects. [Citations.] In contrast, the community caretaker exception is only invoked when the police are not engaged in crime-solving activities." (Id. at p. 471.)
The community caretaker exception recognizes that, "[i]n the average day, police officers perform a broad range of duties, from typical law enforcement activities--investigating crimes, pursuing suspected felons, issuing traffic citations--to 'community caretaking functions'--helping stranded motorists, returning lost children to anxious parents, assisting and protecting citizens in need--'totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.' (Cady v. Dombrowski (1973) 413 U.S. 433, 441 [37 L.Ed.2d 706, 714-715].)" (People v. Ray, supra, 21 Cal.4th at p. 467.)
"The appropriate standard under the community caretaking exception is one of reasonableness: Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions? Which is not to say that every open door--even in an urban environment--will justify a warrantless entry to conduct further inquiry. Rather, as in other contexts, 'in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or "hunches," but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary.' [Citation.]" (People v. Ray, supra, 21 Cal.4th at pp. 476-477.)
"'"The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." [Citation.] And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. [Citations.]' (Mincey v. Arizona (1978) 437 U.S. 385, 392-393, [57 L.Ed.2d 290]; Wayne v. United States (D.C. Cir. 1963) 318 F.2d 205, 212 . . . .)" (People v. Ray, supra, 21 Cal.4th at pp. 470-471.)
In this case, the evidence clearly established that the police entered defendant's apartment based on a reasonable concern for the health and safety of defendant's five children who had not already been taken into protective custody earlier that day. Officer Williams explained his decision to enter the apartment by testifying: "I figured with the injuries that I already had with these children that I had seen on the forearms and what had--I believe that the other children would have that same type of injury. It could happen. Plus the anger of [defendant] towards me, I would have no way to ensure their safety, so I was greatly concerned that if I didn't find where these kids were right now or as soon as possible they could be exposed to all kinds of bad things or they could be found to be okay but until I was able to determine that, I asked other officers to go to [defendant's apartment] to ensure the kids were there and safe."
The officer's concerns were legitimate and well founded. As the injuries observed on D. and K. demonstrated, at least two of defendant's children suffered similar deep scars and new wounds. D. and K.'s teacher was sufficiently alarmed by the nature of the wounds that she immediately reported the injuries to CFS. Officer Williams's observation of the same injuries confirmed their seriousness. Moreover, Officer Williams's encounters with defendant and his wife showed that they were extremely angry at the time that D. and K. were taken into protective custody. Officer Williams's concern for the remaining children was well founded and reasonable. Officer Williams was not required to secure a warrant to enter defendant's apartment in order to check on the well-being of the five children not already taken into protective custody. (People v. Ray, supra, 21 Cal.4th at pp. 476-477.) Having lawfully entered defendant's apartment, Officer Williams was not precluded from testifying about the injuries he noticed on each of defendant's children he located there. (Id., at pp. 470-471.) The defense motion to suppress this portion of Officer Williams's testimony lacked merit. Consequently, defendant did not receive ineffective assistance of counsel as a result of counsel's failure to bring the motion to suppress on a more timely basis. (People v. Ochoa, supra, 19 Cal.4th at p. 463.)
The judgment is affirmed.
RAYE , P.J.
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