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The People v. Myisha Lavon Beier

December 17, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MYISHA LAVON BEIER, DEFENDANT AND APPELLANT.



(Super. Ct. No. SF087662A)

The opinion of the court was delivered by: Cantil-sakauye,j.

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In 2003, defendant Myisha Lavon Beier entered a plea of guilty to felony infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) in exchange for dismissal of the remaining counts and a grant of probation. The court suspended imposition of sentence and granted probation for a term of five years subject to certain terms and conditions including 120 days in jail. Between 2003 and 2008, four petitions to violate her probation were filed; each time probation was revoked it was later reinstated. Defendant appeals from the last petition, the 2008 probation violation.

A petition filed in March 2008 alleged that defendant willfully harmed or injured a child (Pen. Code, § 273a, subd. (b)). After a contested revocation hearing in March 2009, the court found that defendant violated probation. The court reinstated probation on the condition defendant serve 60 days in jail. The court granted a stay on the jail sentence pending appeal.

Defendant appeals. She contends the trial court prejudicially erred and violated her right to confrontation in admitting hearsay testimony at the probation revocation hearing held in March 2009. We will affirm.

FACTS

About 6:15 p.m. on January 9, 2008, defendant and her three-year-old son D. were at Marie Harrell's daycare facility. Defendant was eating in the kitchen. D. and four-year-old James were fighting over a toy in front of a hot fireplace. James burned his hand on the glass screen on the fireplace and screamed. Harrell was sitting next to the fireplace. She took James into the kitchen and put his red hand under cold water. She did not hear D. scream or cry. While standing at the front door with James's mother, explaining what had happened, Harrell was approached by defendant who asked for the first aid kit. Defendant said that D. had burned his hand as well. Defendant then left the daycare with D.. Harrell did not see a bandage on D.'s hand. D. had a blank look on his face.

D. did not return to Harrell's daycare facility for several days. When he did, he had a bandage over his whole hand. Harrell never saw D.'s bandage removed. D. left her daycare three weeks later.

In February 2008, D. started to attend Kids Junction, a daycare facility. On February 21, 2008, 10 or 11 of the children at the daycare were eating a snack at two tables. The daycare had large windows to view the traffic. A fire truck went by and all the children began to talk about fires, firefighters, and people who are rescued. One child said that a person can get burnt. Some children said burns can lead to death. D. loudly volunteered to the whole class, "'I got burned [and] I didn't die. This is what happened to me,'" revealing the burns on his fingers. He got out of his chair and showed his teacher, Cindy Jester, who was sitting between the tables. Jester asked if his fingers hurt and he said not anymore. Jester asked D. how he was burned. D. replied that his mother had burnt him on the fireplace because he had burnt James. To confirm what she had heard, Jester asked him again why he was injured and he repeated his answer. Jester thought D. said it happened at "Ms. Sherry's" or "Ms. Sharie's." Both times D. said that his mother burned him to teach him a lesson. D. did not appear to Jester to be in any stress from the burn itself.

Jester reported D.'s claims to the daycare director who advised her to report the incident to Child Protective Services (CPS). CPS workers and sheriff's deputies interviewed Jester the next day.

On February 27, 2008, Harrell told a sheriff's deputy that in January she and defendant were in the kitchen and that she did not see what had happened to D.. Harrell explained to the deputy that defendant said that D. had burned his hand as well and asked for some burn cream.

Defendant testified. She claimed the incident occurred in mid-December, not January. D. continued at Harrell's daycare the next few days. Defendant claimed that James and D. fought over a toy and James got burned. Harrell put James's hands under water in the kitchen sink. James screamed and cried, "'He burned me, he burned me, he burned me!'" D. started whining and fell on the floor next to the fireplace. Defendant confronted D. and screamed, "'What happened? What did y'all do? What happened? What did you do, D., what did you do?'" She then grabbed D. and demanded, "'Why did you do that to James?'" She demanded that he give her the toy. D., looking sad, showed her his hand and said that it hurt. Defendant took D. to the bathroom and ran cold water on his red hand. Defendant told James's mother, who had just arrived, that "'D. burned James,'" ...


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