People v. Pearson CA5 ( 2023 )

Filed 12/4/23 P. v. Pearson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082052
Plaintiff and Respondent,
(Super. Ct. No. BF172410A)
v.
DAYVONE DUANE PEARSON, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Brian M.
McNamara, Judge.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M.
Levers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant Dayvone Duane Pearson was convicted by jury of one count of
inflicting pain and suffering on a child under circumstances or conditions likely to
produce great bodily harm or death, G.W. (Pen.1 Code § 273a, subd. (a)). The jury
further found true an enhancement alleging that Pearson had personally inflicted great
bodily injury in the commission of the offense (§ 12022.7, subd. (d)). He was sentenced
to a term of 10 years in state prison.
Pearson raises the following claims on appeal: (1) the trial court erred in denying
his motion to suppress inculpatory statements made by Pearson during police
interrogation. Pearson contends that his statements were induced by an implied promise
of leniency if he confessed; (2) the trial court abused its discretion by excluding
statements made by Mariah W., Pearson’s codefendant, to a Child Protective Services
caseworker, wherein Mariah admitted she had lied about Pearson abusing G.W.; (3) trial
counsel was constitutionally ineffective for failing to object to the admission of Mariah’s
statements to three witnesses (Pearson contends this evidence was inadmissible hearsay);
(4) there was insufficient evidence to warrant a jury instruction on flight (CALCRIM No.
372); (5) the cumulative effect of these errors necessitates reversal of his conviction; and
(6) recent amendments to section 1170, subdivision (b) necessitates remand of the matter
for a new sentencing hearing.
In light of recent amendments to section 1170, subdivision (b), we will remand the
matter back to the lower court for resentencing. We otherwise affirm the judgment of
conviction.
1 All further undefined statutory citations are to the Penal Code unless otherwise
indicated.
2.
PROCEDURAL HISTORY
On August 25, 2020, the Kern County District Attorney filed an amended
consolidated information charging Pearson with inflicting pain and suffering on a child,
G.W., under circumstances or conditions likely to produce great bodily harm or death
(§ 273a, subd. (a)). The information further alleged that Pearson had inflicted great
bodily injury on the victim, G.W., who was under the age of five (§ 12022.7, subd. (d)).
The information also charged Mariah W. with inflicting pain and suffering on G.W.,
under circumstances likely to cause great bodily harm or death by failing to protect
and/or provide medical care (§ 273a, subd. (a)).
On August 17, 2020, Pearson’s and Mariah’s jury trials commenced. Two juries
were empaneled, one for each defendant.
On October 20, 2020, Pearson was found guilty as charged.2 The jury further
found true the great bodily injury enhancement allegation.
On November 18, 2020, the trial court sentenced Pearson to a prison term of 10
years, comprised of the mid-term sentence of four years on count 1, plus the upper term
sentence of six years for the great bodily injury enhancement.
Pearson filed a timely notice of appeal.
STATEMENT OF FACTS
The Prosecution’s Case
On May 25, 2018, at approximately 7:50 p.m., Mariah W.3 brought her nine-
month-old son, G.W., into the Priority Urgent Care facility in Bakersfield. G.W.’s face
was covered in bruises which were immediately noticeable; he appeared to have been
physically abused.
2 Mariah was also found guilty but she is not a party to this appeal.
3 We refer to Mariah by her first name throughout this opinion to protect the
identity of the victim. No disrespect is intended.
3.
A medical assistant called 911. Mariah appeared to be very anxious. Concerned
that she would leave, staff immediately brought Mariah and G.W. into a treatment room.
G.W. had bruising over his eyes, on his face, ears, jaw, head, elbow, torso, on his
right shoulder, and on his left leg. Based upon their coloration, the bruises were in
different stages of healing, suggesting that the injuries had occurred at different times.
G.W. also had minor lacerations on his torso.
G.W.’s eyes were partially swollen shut. He had dried blood and dark bruising in
both of his inner ears, and discharge in his ear. G.W.’s face was covered with a crusting
of blood and mucus.
G.W. also had cradle cap, a skin infection, and impetigo, a bacterial infection,
around his nostrils. His clothes, body, and nails were dirty, and he had severe diaper rash
near his groin.
G.W. had a large hematoma, or collection of blood under the skin, on the posterior
left of his scalp. The treating physician’s assistant was concerned that G.W. had suffered
a fractured cranium or spinal injury, and recommended the baby be transported by
ambulance to the hospital for a CT scan.
Mariah claimed that her parents had been watching G.W. for the past 10 days.
Several hours after she picked G.W. up from their home, she noticed that G.W.’s face
was covered in makeup. When Mariah removed it, she noticed that G.W.’s face was
bruised.
Mariah walked in and out of the treatment room, leaving the baby unattended.
When she returned to the lobby, she spoke to a Black man wearing a gray hoodie
sweatshirt. The man, who police later determined was Pearson, did not accompany
Mariah when she had initially walked into the urgent care facility.
Staff noticed that the man’s hoodie was drawn over his head. They could not see
the man’s face because he was looking down when they walked into the lobby.
4.
When Bakersfield Police Officers Ryan Fujihara and Austin Kennedy arrived at
the urgent care facility 10 minutes after the 911 call was placed, the man in the gray
hoodie was gone. An hour and a half after Mariah and G.W. arrived at the urgent care
facility, G.W. was transported by ambulance to Bakersfield Memorial Hospital for
treatment.4
CT scans showed that G.W. had suffered several skull fractures, including a
depressed skull fracture as well as a complex skull fracture. The fracture lines on the
back of G.W.’s skull resembled a cracked egg which “spiderwebb[ed]” out. The injury
was caused by one or possibly more than one impact. Due to the severity of his injuries,
G.W. was subsequently transported to Valley Children’s Hospital for a higher level of
care.
The radiologist who examined G.W.’s scans opined that the skull fractures on the
back of G.W.’s head could be consistent with someone backhanding a baby, resulting in
the baby falling and hitting the back of their head on a tile floor. G.W.’s injuries could
also have been caused by falling out of someone’s arms, backwards, and landing on a
cement floor, or by falling backwards from a bed or a couch onto a hard floor. The
radiologist could not determine when G.W. had suffered the skull fracture.
The Investigation
1. Pearson and Mariah’s Text Messages
Detectives interviewed Mariah while at Memorial Hospital and received her
permission to examine her text messages to Pearson. Mariah and Pearson had been
exchanging text messages throughout the evening. Investigating officers took pictures of
4 The testimony was conflicting as to whether the ambulance or the police arrived
first, and when they both arrived, but it is undisputed that Pearson was gone when the
police arrived. Mariah purportedly told Pearson that they were going to take G.W., and
that Pearson needed to leave.
5.
Mariah’s text messages, and later, they extracted Pearson’s phone records. The following
exchange represents a compilation of these records.
At 8:26 p.m., Mariah asked Pearson to “ ‘call [her] back.’ ”
At 8:50 p.m., Pearson texted, “ ‘Me and the homie are witness to picking u up and
seeing him like that.’ ” Pearson asked Mariah whether everything was okay and asked
her to call him back.
At 9:16 p.m., Pearson wrote, “ ‘Are u still talking to the cops still or did they go
get him[?]’ ” Mariah did not respond. Four minutes later, Pearson asked Mariah to text
him.
At 9:21 p.m., Mariah informed Pearson that she had bad news. Pearson texted
Mariah inquiring what the news was, and asked Mariah, “So whats going on[?]”
At 9:31 p.m., Pearson asked, “ ‘Baby im scared and nervous whats going on[?]’ ”
A few minutes later Pearson texted, “ ‘Is he alright[?]’ ”
At 9:35 p.m., Mariah informed Pearson that the baby had broken bones in his skull
and he was going to be transferred to Valley Children’s Hospital. Pearson replied, “ ‘We
gone lock his ass up my best friend says if he tries to lie. Hell back u up to.’ ” He asked
Mariah, “ ‘did they get your bro[?]’ ” Mariah told Pearson that the police did not believe
her, they told her that she was lying, and that her family had also told the police that she
was lying. Pearson responded, “ ‘Wtf but u should have said u have witnesses.’ ”
Between 12:04 a.m. and 1:17 a.m. on May 26th, just hours after G.W. was
admitted into the hospital, the following exchange occurred between Pearson and
Mariah:5
“[Pearson:] ‘Right your brother needs to pay for what he did to him’
“[Mariah:] ‘[M]y all family is gonna tell the cops that you abuse the baby’
5 To avoid frequent use of the word “sic,” we quote the texts verbatim without
acknowledging all spelling, typographical, and grammatical errors.
6.
“[Pearson:] ‘Are us serious well my best friend is going to tell them the
truth when we picked u up to take u to ur friends house he had bruises on
his face’
“[Mariah:] ‘[M]y whole family is gonna tell the cops that you abuse the
baby’
“[Pearson:] ‘I didn’t do shit’
“[Mariah:] ‘[B]aby you should [tell] them that’
“[Pearson:] ‘Should what’
“[Mariah:] ‘[T]ell the cops that you didn’t abuse him’
“[Pearson:] ‘Oh I am me and my best friend I just tryed to help u clean him
up cause ur bro fkd him up’
“[Pearson:] ‘And besides you wernt with me u stayed the night at a friends
house’
“[Pearson:] ‘You Know’
“[Mariah:] ‘[Y]es I know’
“[Pearson:] ‘So they can’t blame me at all’
[¶] … [¶]
“[Pearson:] ‘ … ur brother’s going down’
“[Pearson:] ‘Besides they can look at my daughter and see I
don’t beat or abuse kids’
“[Mariah:] ‘that’s true’
“[Pearson:] ‘Yeah be real have u ever seen me beat my
daughter or my nieces I would have been locked up along
[clock emoji] ago.’ ”
7.
2. Mariah’s Statements to Police
i. First Interview
Bakersfield Police Department Officer Ryan Fujihara interviewed Mariah at
Memorial Hospital on May 25, 2018. Although Mariah’s statements were recorded and
transcribed for the jury, her version of events is difficult to follow. We therefore
summarize only those details pertinent to this appeal.
Mariah initially told Officer Fujihara that G.W. had been injured when she left the
baby “[a]t [her] house,” on Woodrow Avenue, while in her brother’s care. She claimed
that she had left G.W. with her brother, J.W., around 8:00 a.m. on Thursday, May 24,
2018. The baby was uninjured when she dropped him off. G.W. was injured when she
picked him up around 12:00 p.m. that day.
Mariah then claimed G.W. was injured on Friday, May 25, 2018, between 11:00
a.m. and 1:00 p.m. when she dropped him off at the Woodrow Avenue home. When she
picked up G.W., Pearson noticed that the baby had been covered in makeup. Mariah
claimed that she observed the baby’s injuries after she removed the makeup.
When deputies from the Kern County Sheriff’s Department interviewed Mariah’s
family, Mariah’s mother, D.H., told them that Mariah had been kicked out of the house
on Wednesday, two days before Mariah took G.W. into urgent care. The baby was not
injured when they left. Mariah’s sister, C.W., told the deputies that the last time she saw
Mariah and G.W., Mariah and G.W. left with Pearson. C.W. did not see any injuries on
the baby the last time she saw him.
Deputies did not speak to Mariah’s brother. J.W. had not been home that entire
week.
ii. Second Interview
On May 26, 2018, Mariah was interviewed by Bakersfield Police Officer Ryan
Ryder. Senior Officer Guinn and Child Protective Services (CPS) caseworker, Susan
8.
Rutledge, were present during the interview. Rutledge had a prior relationship with
Mariah’s family, as she had been assigned to them for some time.
Based on Mariah’s initial statement, investigating officers could not determine
where or how G.W.’s injuries occurred. Mariah’s ensuing statements did virtually
nothing to resolve the officers’ confusion, leaving Officer Ryder with the impression that
Mariah was lying. During her interview with Officer Ryder, she gave inconsistent and
illogical answers as to where she and G.W. had been the past two days. Mariah
maintained however that G.W. had been injured by her brother.
iii. Third Interview
On Friday, May 25, 2018, just before midnight, Bakersfield Police Detective Peter
Beagley and Sergeant John Bishop spoke to Mariah at Memorial Hospital. Mariah told
them she had been staying at a friend’s house, also on Woodrow Avenue, because she
had been kicked out of her family’s house for almost a week. That same week, she had
also stayed at Pearson’s house. During the time she and G.W. were at Pearson’s house,
G.W. had no injuries.
Mariah’s ensuing statements, including the temporal proximity of events, changed
at least twice during her interview, but she generally asserted that G.W.’s injuries
occurred when she left the baby in J.W.’s care. Mariah claimed that J.W. babysat G.W.
so that Mariah could help a friend move some items, and because J.W. wanted to babysit.
So, on Thursday, she dropped G.W. off at her parent’s house.
When Mariah picked G.W. up, she noticed that he had makeup on his face,
including skin-colored foundation. Mariah questioned J.W. about it, but he just stared at
her blankly. When she arrived at Pearson’s house, she removed the makeup and noticed
the baby’s injuries.
9.
Detective Beagley confronted Mariah about her shifting version of events and
stated that she was lying. Mariah changed her story again, and the following exchange
occurred:
“MARIAH: Okay. Okay. I was at my boyfriend’s, okay? And my
boyfriend had [G.W.] ‘cause I was in … the living room cleaning the
house. My boyfriend had him. Okay? And then he called me outside. I
saw [G.W.] on the ground, laying on the ground. And [Pearson] told me
that he dropped him. I picked him up and … I looked at him.… I only saw
this bruise, right here. But I didn’t see this one.… [Pearson] said that he
only did this when he dropped [G.W]. ‘Cause [G.W.] was like hyper. Like
he was hyper. Like he jumped. He told me …
“BEAGLEY: [G.W.] jumped out of [Pearson’s] hands?
“MARIAH: Yeah that’s how he fell. ‘Cause [Pearson] … said that [G.W.]
was excited.
“BEAGLEY: You understand that if [G.W.] jumps … he’s not going to
bruise both sides of his face like that? He has several skull fractures from
somebody beating him.
“MARIAH: Well I don’t know … he’s beating him though when the
person … that had him was my boyfriend. He had him outside. Playing
with him. And then he tell me that he drop off at his hands and fell.”
Mariah did not see the fall occur, but when she went outside, G.W. was laying on
the ground with Pearson’s shirt underneath him. Mariah claimed that G.W. was shivering
and his body was “freezing cold,” but he was clothed only in a diaper.
Pearson told Mariah that the baby had jumped out of his arms. This occurred
sometime between 8:00 a.m. and 9:00 a.m. on Friday. Pearson explained that he had put
the baby on a shirt on the ground to “get some oxygen.” He told Mariah that he had
removed the baby’s clothes because “it was hot.”
When Mariah picked G.W. up, she noticed that he had “bruises everywhere.”
Pearson gave multiple explanations for the baby’s injuries. Mariah claimed that with the
exception of a diaper rash, G.W. had no injuries on him when he woke up that morning.
10.
Detective Beagley asked Mariah whether she thought all of G.W.’s injuries could
have come from one fall. She replied “[n]o.” When asked what she thought happened to
G.W., Mariah responded, “I think that [Pearson] beat him.”
Mariah admitted that on Monday that same week, she had witnessed Pearson
spank G.W. on his butt “really hard,” for pulling another child’s hair. The smack left a
red mark. She denied observing Pearson hit the baby any other time.
Mariah admitted that she had blamed her brother for causing the baby’s injuries
because Pearson told her to. She agreed to do so because she was afraid Pearson would
hit her, which he had done previously.
Detective Beagley suggested that Pearson injured G.W. out of frustration and
asked Mariah whether the baby had been crying. Mariah responded affirmatively,
explaining that the baby cries “all the time.” Mariah stated that Pearson had hit G.W. on
his arm, told him to “ ‘[s]hut the fuck up,’ ” and cursed at him. Pearson also told Mariah
that he had smacked G.W. because the baby would not stop crying.
The morning of May 25, 2018, Pearson told Mariah that G.W. jumped out of
Pearson’s arms and fell, resulting in the injuries to the baby’s face. Mariah explained that
when Pearson had smacked G.W. for crying, that occurred after the fall.
At some point that same day, Pearson’s sister saw G.W.’s bruises over video chat
and told Pearson and Mariah and G.W. to urgent care. Pearson did not want to go
because of how G.W.’s face appeared.
Mariah admitted that she did not want to call 911 because CPS would become
involved. She also claimed Pearson took her phone so that she would not call for an
ambulance. When they finally walked to the urgent care facility at 4:00 p.m., Pearson
told Mariah that if a doctor asked her what happened, she should blame other people for
G.W.’s injuries.
11.
iv. Mariah’s Fourth Interview
After law enforcement visited the Woodrow Avenue home, Mariah’s mother, D.H.
called Rutledge. D.H. told Rutledge that Mariah had told her that Pearson caused G.W.’s
injuries. Mariah told D.H. that Pearson struck the baby against the tile floor.
Based on this information, Detective Beagley re-interviewed Mariah. During this
interview, Mariah admitted that Pearson had smacked G.W. on Monday. Mariah also
confirmed, consistent with D.H.’s representations, that she had observed Pearson drag
G.W. facedown on the tile floor of the living room in Pearson’s home. Pearson was
holding G.W. by his legs.
Mariah stated that Pearson was laughing while doing so and remarked that “it was
funny to torture kids.” Mariah claimed she tried to intervene but Pearson pushed her.
According to Mariah, Pearson hurt G.W. because the baby was crying. Although
she wanted to leave Pearson, she was afraid of him.
3. Pearson’s Interrogation
Pearson was handcuffed and escorted from his home to the Bakersfield Police
Department on May 26, 2018, at 3:52 a.m., the morning after G.W. was taken into urgent
care. Pearson was interrogated in the special victim’s unit office by Sergeant Bishop and
Detective Beagley for a little over an hour.
Although Pearson initially denied intentionally injuring G.W. and tried to blame
Mariah’s brother for causing the baby’s injuries, he eventually admitted that he had
accidentally dropped the baby, causing the baby to land on the ground face first.
After further questioning, Pearson admitted to backhanding G.W. twice out of
frustration, causing the baby to fall backwards and hit his head “hard” against the tile
floor. Although the detectives told Pearson that the baby had a fractured skull, they never
told Pearson where the skull fractures were located. During the interrogation, Pearson
12.
confirmed that he was responsible for some of the baby’s bruises and “the fractured skull
in the back.”
Testimony at Trial
1. Testimony of J.K.
J.K. fostered G.W. when he was discharged from the hospital. She eventually
adopted.
When J.K. initially saw G.W., she stated that he was “dirty and filthy,” and that
his hair was matted. She had never seen a baby with a case of cradle cap so severe. J.K.
learned that G.W. had never received immunizations and he appeared to be “very
malnourished.” G.W.’s diaper rash was so severe, it caused permanent scarring. And, as
a result of his skull injury, G.W. had to wear a helmet to prevent further damage to his
skull and aid in its proper healing.
J.K. described G.W. as being stuck in a perpetual state of flight or flight. She also
described instances where G.W. exhibited aggressive behavior towards animals and other
children, and stated that he had attachment issues.
Before it became clear that Mariah would not be able to get G.W. back, J.K. was
supportive of reunification. Mariah and J.K. would communicate about G.W., the
criminal case, and other topics.
In June 2018, a text message exchange occurred between J.K. and Mariah. Mariah
stated that Pearson had hurt G.W. because “he was crying too much.” Mariah also told
J.K. that she had observed “[Pearson] dragging [G.W.] on the living room floor.” These
claims were consistent with prior statements Mariah made to J.K.
2. Testimony of D.H.
Mariah’s mother, D.H., testified that Mariah’s cognitive limitations caused Mariah
to lie frequently. D.H. also claimed that Mariah lied to get attention. She explained that
Mariah had previously lied to CPS, accusing D.H. of abusing her. Mariah had also lied
13.
on two prior occasions to law enforcement, claiming that she had been raped by a boy
named “Bottle.”
Mariah began dating Pearson only a few weeks before G.W. was brought into
urgent care. During that time, Mariah and G.W. were not living at one particular
residence. Pearson was staying at his sister’s house.
On May 24, 2018, the day before G.W. was injured, Mariah and G.W. visited the
family home on Woodrow Avenue. When Mariah and G.W. left between 10:00 and
11:00 p.m., G.W. had no visible injuries. D.H. was concerned that Mariah was taking
G.W. to Pearson’s home. Mariah had previously told D.H. that Pearson spanked the baby
for pulling another child’s hair.
D.H. had never observed J.W. beat or hurt the baby. J.W. was not present in the
family home at all the week that G.W. was taken into urgent care.
The Defense Case
Based upon G.W.’s injuries, it was undeniable that something had happened to
him. Trial counsel adduced evidence showing that residents at the Woodrow Avenue
home were generally uncooperative with law enforcement. She further observed that
there was no doubt that G.W. had been severely neglected and that his injuries were
sustained at different periods of time. According to trial counsel, these injuries could not
have resulted from one night with Pearson.
With respect to Pearson’s admissions made during police interrogation, trial
counsel asserted that Pearson “was clearly defeated” by the detectives. As to Mariah’s
statements identifying Pearson as the cause of the baby’s injuries, trial counsel opined
that Mariah was a suggestive individual, who had lied multiple times. Her statements
inculpating Pearson in the baby’s beating were merely statements from a suggestive
individual, parroting back what detectives had said to her.
14.
Testimony of Dr. Michael Musacco
Dr. Michael Musacco was a clinical psychologist who testified for the defense at
both Pearson and Mariah’s trials. In October 2018, Dr. Musacco conducted a
psychological evaluation of Mariah to assess her intellectual functioning. The evaluation
was conducted at the request of the family court to ascertain Mariah’s suitability for
parental rights.
The average person has an Intelligence Quotient (IQ) score of 100. Mariah had an
IQ of 55, which is consistent with mild to moderate impairment. However, her adaptive
functioning, which translates into her ability to make her way in the word, is more
consistent with a mildly impaired person.
Mariah told Dr. Musacco that she met Pearson in May 2018 and moved in with
him for about a month. Mariah claimed that Pearson had physically abused G.W. and
had threatened her. She admitted that Pearson may have abused G.W. over the course of
several weeks, but that she did not previously disclose this.
Mariah acknowledged that she saw bruises on G.W.’s face but waited 12 hours
before taking him to the doctor because she was afraid that CPS would become involved
and that she could lose custody of G.W. Mariah further claimed that she was concerned
for her personal welfare because Pearson had threatened her.
According to Mariah, Pearson told Mariah to tell investigators that her brother,
J.W., had abused G.W. Mariah acknowledged that she had lied to police.
Dr. Musacco concluded that Mariah knew that what she had done, or had failed to
do with G.W., was wrong. He opined that Mariah had attempted to minimize her
culpability because she wanted to regain custody of G.W.
I. Pearson’s Statements Made During Police Interrogation Were Voluntary
Pearson maintains that the trial court erred by admitting inculpatory statements he
made during police interrogation because his statements were coerced by promises of
15.
leniency if he confessed and threats of harsher punishment if he did not. Considering the
totality of the circumstances, we are not persuaded that Pearson’s statements were
coerced.
A. Background
1. The Interrogation
In reviewing the trial court’s ruling on a motion in limine, we must consider the
facts before the court at the time of its ruling, and not by reference to evidence produced
at a later date. (See People v. Welch (1999) 20 Cal.4th 701, 739.) Thus, the pertinent
facts are those adduced in the in limine proceedings.
In ruling on Pearson’s motion to exclude his statements made during police
interrogation, the trial court considered the parties’ motions, arguments, the unredacted
transcript and audio recording of the interrogation, and a written report by a police
interrogation expert, Dr. Richard Ofshe, who opined that Pearson’s inculpatory
admissions were the product of police coercion. No witnesses testified at the hearing.
On May 26, 2018, at approximately 3:00 a.m., Pearson was handcuffed and
escorted to the police department. He was questioned at the police station at 3:52 a.m. by
Sergeant Bishop and Detective Beagley. Details about the interrogation room were not
adduced at the in limine hearing.
At the commencement of the interrogation, Pearson was admonished pursuant to
Miranda.6 Pearson acknowledged that he understood his rights and it is undisputed that
he did not invoke his Miranda rights at any point during the interrogation.
The interrogation lasted one hour and six minutes. During this time, Pearson did
not ask for food or water, nor did he request to use the restroom.
At the commencement of the interrogation, Pearson claimed that Mariah’s family
was framing him for G.W.’s injuries, and that text messages between he and Mariah
6 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
16.
would demonstrate as much. The detectives replied that they had already seen those
messages.
Pearson initially claimed that G.W. already had some black and blue marks on his
face when he picked up Mariah and G.W. on Thursday, the night before G.W. was taken
to urgent care. Pearson claimed that when Pearson asked Mariah what had happened to
G.W., Mariah stated that her brother had beaten G.W. when she left the baby in her
brother’s care.
Pearson initially claimed that he and a friend picked Mariah and G.W. up on
Thursday night at 11:00 p.m. They dropped Mariah and G.W. off at her friend’s house in
Oildale at 2:00 or 3:00 a.m. on Friday. Pearson then claimed they did not drop Mariah
and G.W. off until sometime during the daytime, on Friday. When Sergeant Bishop
asked Pearson how he got the time mixed up, Pearson stated that he was tired. After
further questioning, Pearson stated that Mariah never actually went to her friend’s house
and that she had stayed the entire night with him on Thursday.
According to Pearson, G.W. had “[j]ust a little bit of bruising” on him when they
picked G.W. and Mariah up, including, black and blue marks on his forehead and on and
around his eye. When Pearson inquired about the baby’s injuries, Mariah stated that her
brother had beat the baby because the baby was crying.
Pearson stated that he stayed awake until his sister, A.P., left the house for work at
5:45 a.m., because he “wanted to make sure [G.W.] was alright.” When Pearson’s sister
saw G.W., she asked, “[O]h my god what happened to him?”
A.P. told detectives that she did not know about G.W.’s injuries until she saw the
baby on a video chat call on May 25th at 4:00 p.m. When detectives confronted Pearson
with this fact, Pearson explained that he gets things mixed up because he is dyslexic. He
further explained that there had been a video call in the morning as well.
17.
Sergeant Bishop told Pearson that G.W. had been transferred to a children’s
hospital and due to the severity of his injuries, there was a possibility that he may not
survive. They told Pearson to “be one hundred percent honest,” and to tell them what
happened because it would have a lot of bearing upon “where this goes from here.”
Detective Beagley stated that Mariah’s brother had nothing to do with G.W.’s injuries,
and that they needed Pearson to be completely honest.
Pearson remained subdued throughout the interview. He continued to deny
beating the baby but now claimed that he left one detail out of his story: G.W. had
jumped out of Pearson’s arms when Pearson was holding him.
Sergeant Bishop remarked that Pearson had not left that out of his story, he was
“flat out lying,” and stated, “[t]he baby did not jump out of your arms, because a baby
does not jump out of someone’s arms and end up with multiple skull fractures and bruises
all over his face.… This baby was beaten, okay?”
Pearson continued to deny responsibility for intentionally injuring G.W. and
insisted that he did not beat or touch G.W. He maintained that G.W. had jumped out of
his arms.
Pearson stated, “[I swear to God,] I don’t know what happened.” Detective
Beagley replied, “If you’re going to bring god in[to] this, you need to tell the truth.”
Pearson stated, “That’s what I’m saying. I really don’t know what happened.”
Detective Beagley insisted, “That baby was beaten almost to death. We know
what happened. We want to hear you say it. You know what happened.” Pearson
insisted that he did “did not beat him.”
Sergeant Bishop shifted to an empathetic approach. He suggested that it is not
unusual for a nine-month-old baby to cry incessantly, which can understandably frustrate
a parent or caregiver. Sergeant Bishop continued to suggest that Pearson may not have
18.
intended to hurt G.W., but that he may have gotten frustrated and lost his temper. He
added that every parent does it.
Pearson continued to deny any knowledge as to how the baby ended up with the
injuries he suffered and told the detectives they would have to ask Mariah about the
injuries. Sergeant Bishop told Pearson that he may not have intended to hurt G.W., but
suggested that Pearson “lost [his] temper,” “got frustrated,” and “made a mistake.”
Pearson denied losing his temper and claimed that “it takes a lot … for [him] to lose [his]
temper.” Sergeant Bishop commented that “[a] child is capable of pushing even the most
sane man to his limits.”
Pearson acknowledged that while “[G.W.] does cry” and “parents do get irritated,”
that is not something “in [his] agenda,” suggesting he is not a violent person. He added
that detectives could look at his records. Sergeant Bishop remarked that Pearson did
have “a history of domestic violence type offenses,” and that they had not even pulled his
full criminal history yet.7
The detectives clarified Pearson’s version of events thus far. According to
Pearson, he was with Mariah and G.W. since Thursday evening at 10:00 or 11:00 p.m.
until the time that she went to the hospital. Pearson claimed that he was with them the
entire time, except for when he went for a walk and to the store.
Pearson claimed that at about 3:30 a.m., G.W. had jumped out of his arms, falling
face first onto the concrete. He and Mariah did not arrive at the urgent care center with
the baby until 6:00 or 7:00 p.m. that evening—nearly 14 hours later—because they had to
walk there. Pearson claimed that G.W. had some injuries before the fall, including, cuts
to his stomach and back, but confirmed that G.W. had suffered a cut to the bottom of his
eye after he fell from Pearson’s arms.
7 The jury did not hear this portion of the interrogation. Nor did the jury hear a
portion of the interview where Pearson stated he drinks and smokes with his best friend.
19.
Mariah refused to call for an ambulance or to take the baby to the hospital until
Pearson’s sister instructed her to do so. Mariah told Pearson that she did not want the
baby to be taken away from her. After A.P. insisted that Mariah take the baby to the
doctor, Pearson and Mariah took him to urgent care. Pearson left because he had to “get
back home to [his] kid.”
The detectives asked Pearson why he claimed Mariah’s brother was responsible
for G.W.’s injuries when Pearson also claimed that G.W. was not injured until he fell
from Pearson’s arms. Sergeant Bishop branded Pearson’s story as “bullshit.”
They also confronted Pearson about the severity of G.W. injuries, observing that
the baby had multiple skull fractures, but no bruises on the top of his forehead (even
though he had purportedly fallen on his face), abrasions where he scraped against the
ground on his forehead, his eye was almost stollen shut, and he had bruises on his face,
chin, shoulders, elbows and scratches on his back. Detective Beagley explained that
G.W.’s injuries were not consistent with G.W. falling on his head, and that Pearson
“need[ed] to be honest with [them] and tell [them] what happened cause [they were] not
even getting the same story from [him].”
Pearson stated that he was going to tell them “exactly what happened,” but began
stumbling over his words. He apologized, explaining he was so “nervous” and “scared.”
Sergeant Bishop replied that telling the truth would help Pearson alleviate those feelings,
calling Pearson’s effort to implicate Mariah’s brother “bullshit.”
The following exchange ensued:
“Pearson: [G.W.] jumped and then he fell.
[¶] … [¶]
“[Sergeant] Bishop: … [H]e didn’t just fall once. It’s not physically
possible.
“[Detective] Beagley: Those injuries are telling a very different story.
20.
“[Sergeant] Bishop: The injuries is the physical evidence, okay?
[¶] … [¶]
“[Sergeant] Bishop: Doctors that have gone to school for … a long time,
way more educated than anybody in this room are going to be able to look
at those injuries and say that this is evidence of this baby being either struck
multiple times, thrown multiple times, slammed against the ground multiple
times. They … will be able to say for a matter of fact this could not have
come from one fall and they have the evidence, the x-rays, the visible
injuries on his body to prove it. Okay?
“Pearson: Well[.]”
Sergeant Bishop interrupted Pearson and made the following comments, which
were referred to as the “long speech” by Dr. Ofshe.8
“[Sergeant] Bishop: So unless – and I’ll tell what’s going to happen. If
you don’t start being honest, and this baby dies, you’re going to be
charged with a homicide, okay? Because you are not telling the truth and
you [are] just beating around the bush and telling these different stories is
not going to help your case, ok? What is, is you being honest and telling us
what really happened, ok? We already know a very big portion of the truth
of what actually happened and we’re just waiting for you to be truthful, and
tell us. Tell us your version, tell us what happened.”
[42-second period of silence]
“[Sergeant] Bishop: Dayvone, people make mistakes okay. The difference
in what happens after you make a mistake is how you respond to it
afterwards, okay? And that makes the difference whenever cases like this
end up being looked at by judges and juries, okay? They don’t always
necessarily look at what happened during the accident, the fall, the crime,
whatever you want to call it. They don’t always look at just that, okay?
They look at the response to the person that was involved afterwards and
how they respond to it. Now, if that person denies things, lies, tries to
come up with any different story possible to get their butt out of trouble,
and the evidence shows different, juries and judges do not like that, ok.
Because they think this guy did something and he’s coming up with all
8 The italicized and emboldened language reflects portions of the interrogation
that Pearson places special emphasis upon in arguing that he was coerced.
21.
these bullshit stories, he’s not remorseful for it. You know, and their
opinion is going to be screw him, give him everything that we can versus a
person who says I messed up, I made a mistake and I’m sorry. Whenever
they see that, they can relate to that, respect it and show remorse.”
[period of silence]
“[Detective] Beagley: But it takes that person to tell the truth.
“[Sergeant] Bishop: The ball is in your court here Dayvone.
“[Detective] Beagley: (inaudible) the truth.
“[Sergeant] Bishop: Only you can help yourself at this point, ok. Takes a
man to admit when he was wrong, or when he messed up. When he made a
mistake. Anybody can sit there and lie and be a punk and come up with a
hundred different excuses and try to blame anybody but themselves, but it
takes a man to admit that you know, he screwed up, he made a mistake. He
lost his temper, got frustrated and that’s what makes all the difference is
how you act after something- something happens. So how do you want it
to be for you?”
Pearson stoically commented, “Well, at the end of the day we’re all human beings
we all mess up.” He maintained that G.W. had fallen from his arms, by accident.
When Sergeant Bishop asked Pearson what else had caused G.W.’s injuries,
Pearson admitted that he had become irritated with the baby. He claimed that he had
struck G.W. twice with his backhand after G.W. began to cry when he fell from
Pearson’s arms. Pearson did this to quiet the baby down. According to Pearson, this
occurred at 3:30 or 3:40 a.m. in the kitchen of his sister’s home, where he brought the
baby after the fall. Pearson stated that he hit the baby a second time because he would
not stop crying.
Pearson claimed that while he had caused some of the injuries to G.W., including
the injuries to G.W.’s face and head, he did not know how the baby had sustained scrapes
and abrasions to his forehead. He admitted that while the strikes were not hard for a
person, “for a baby,” they were hard. The second hit caused G.W., who was pulling up
on Pearson, to fall and hit the back of his head “hard” on the tile floor.
22.
According to Pearson, this occurred in the kitchen of his sister’s home at 3:30 or
4:00 a.m. on Friday, May 25, 2018. Mariah did not see the strikes occur because she was
in the bedroom at the time. Pearson denied picking G.W. up by the legs.
Sergeant Bishop told Pearson that they wanted to relate the best and most accurate
information to the doctors so they could properly treat G.W., and “[i]t has not bearing on
the…case or any criminal aspect or anything whether [Pearson] [had] hit [G.W.] twice or
twenty-five times” it did not matter.
Pearson replied, “beside the bruises and the … fractured skull in the back and him
jumping that’s about it.” Pearson confirmed that the injuries to G.W.’s face and head
came from the fall and the two backhanded strikes by Pearson. He denied causing
G.W.’s other injuries, including a bruise on G.W.’s stomach.
2. Pearson’s Motion to Suppress
Trial counsel filed a motion to exclude Pearson’s statements to law enforcement.
Just before voir dire, the trial court ruled that the prosecutor had proven, by a
preponderance of the evidence, that Pearson’s statements were voluntary, and therefore,
admissible. The trial court based its ruling on an unredacted audio recording and
transcript of the interrogation, Dr. Ofshe’s offer of proof, as well as the prosecutor’s
statement of the case, which had explained what the detectives knew before the
interrogation occurred.
The trial court found that the circumstances of the interrogation were not coercive,
reasoning, “the detectives’ manner was gentle and caring,” “[t]he overall approach of the
officers remained low key and the questions were generally short and not convoluted,”
“there [were] no forced-choice questions,” the location of the interview was “not
intimidating,” and the interview was short. The trial court further observed that Pearson
was able to engage in conversation with Sergeant Bishop and Detective Beagley and that
he was asking questions during the interrogation.
23.
On August 25, 2020, the trial court held an Evidence Code section 402 hearing
concerning the admissibility of expert testimony that trial counsel intended to offer.
Dr. Richard Ofshe, a social psychologist with expertise in the psychological effects of
coercive police interrogation tactics, opined that “to a reasonable degree of psychological
certainty that Mr. Pearson was exposed to intentionally coercive interrogation systems
that succeeded in manipulating him away from his initial denial of being the cause of
[G.W.’s] injuries … into offering a confession to causing those injuries.”
The trial court permitted Dr. Ofshe to testify as to his opinion, which would be
relevant to the weight of Pearson’s statements made during police questioning.
3. Dr. Ofshe’s Trial Testimony9
Dr. Ofshe testified at Pearson’s trial only. He discussed the development of the
Reid interrogation technique and its adoption by law enforcement in the United States.
According to Dr. Ofshe, it is the dominant interrogation method used by law enforcement
today.
Dr. Ofshe gave examples of techniques that are consistent with the Reid method,
including, the use of evidence ploys, where law enforcement officers use real or false
evidence to link a suspect to a crime; blaming the victim for the crime; using leading
questions; and suggesting a version of events that makes the crime seem less heinous, and
therefore, morally acceptable; and linking that narrative to an outcome. For example, the
suspect may be told that accepting the story will result in a more lenient treatment, but
that the failure to accept the story will result in harsh treatment.
Dr. Ofshe reviewed the transcript and audio recording of Pearson’s interrogation.
He pointed out specific examples of Reid techniques employed by the detectives,
including their suggestion that children understandably frustrate parents or caregivers.
9 Although Dr. Ofshe’s written report was offered at the in limine proceeding
versus his testimony, we cite to Dr. Ofshe’s trial testimony to avoid an unnecessary
duplication of facts, since his written report is consistent with his trial testimony.
24.
According to Dr. Ofshe, the detectives were introducing a motive for the crime, and
making the crime seem excusable, which would encourage Pearson to confess.
Dr. Ofshe also discussed Sergeant Bishop’s “long speech,” which preceded
Pearson’s inculpatory admissions. Sergeant Bishop’s speech commenced with the
following statement: “[if] [y]ou don’t start being honest and this baby dies, you’re going
to be charged with a homicide, okay, because you are not telling the truth and you are just
beating around the bush.” According to Dr. Ofshe, this was a “threat component of the
choice” which encouraged Pearson to accept “the story that the interrogator has
constructed for the crime.”
Dr. Ofshe further opined that Sergeant Bishop’s statement—“[P]eople make
mistakes,” and the difference is “how you respond to it afterwards,” when it “end[s] up
being looked at by judges and juries”— suggested that if Pearson confessed, he would
receive more lenient treatment.
Sergeant Bishop’s statement—“juries and judges do not like” when a person
“com[es] up with all these bullshit stories” because “[h]e’s not remorseful,” and “their
opinion is going to be screw him. Give him everything that we can. Versus a person that
says I messed up. I made a mistake and I’m sorry.”— suggested that, if Pearson did not
confess, it would create an impression that he deserves the worst punishment. In
Dr. Ofshe’s opinion, it put “very, very strong pressure on the person who is subjected to
it to choose to confess no matter what because confessing appears to be the rational thing
to do.”
According to Dr. Ofshe, Pearson’s statements—“You know you get irritated
somewhat and be like damn, this damn kid, you know?”—seemed to feed back into the
motive offered by Sergeant Bishop and Detective Beagley. When Pearson said he “got a
little irritated,” he was “feeding things back” to the detectives.
25.
Dr. Ofshe acknowledged that, at many points, Sergeant Bishop and Detective
Beagley had asked Pearson to tell them what had happened, versus suggesting what had
occurred. They also never suggested details of the crime Pearson had mentioned,
including, how many times he struck G.W., that he hit G.W. after the baby stood up, and
the hand and manner in which Pearson had hit G.W. Nor did they suggest a narrative that
would explain the bruises on G.W.’s face, or the fact that G.W. had fallen and hit his
head on the tile floor.
B. Legal Principles
“The Self-Incrimination Clause of the Fifth Amendment guarantees that no person
‘shall be compelled in any criminal case to be a witness against himself.’ ” (Withrow v.
Williams (1993) 507 U.S. 680, 688, U.S. Const., Amend. 5.) The Fifth Amendment bars
the use, in federal cases, of involuntary confessions made in response to custodial
interrogation. (Withrow v. Williams, at p. 688; Malloy v. Hogan (1964) 378 U.S. 1, 6
[“the Fifth Amendment’s exception from compulsory self-incrimination is also protected
by the Fourteenth Amendment against abridgment by the States”].) Thus, before a
confession can be used against a defendant, the prosecution has the burden of proving, by
a preponderance of the evidence, that it was voluntary. (People v. Wall (2017) 3 Cal.5th
1048, 1066; People v. Cahill (1994) 22 Cal.App.4th 296, 310 (Cahill); People v. Kelly
(1990) 51 Cal.3d 931, 947.)
“On appeal, we accept the trial court’s factual findings as to the circumstances
surrounding the confession, provided they are supported by substantial evidence, but we
review de novo the ultimate legal question of voluntariness.” (People v. Battle (2021) 11
Cal.5th 749, 790.) Where, as here, the entire interrogation is recorded, the appellate court
may conduct its own review of the totality of the circumstances in determining whether
the defendant’s confession was involuntary and therefore inadmissible. (People v.
Linton (2013) 56 Cal.4th 1146, 1177; In re Shawn D. (1993) 20 Cal.App.4th 200, 216.)
26.
“ ‘[N]o single factor is dispositive in determining voluntariness.’ ” (People v.
Williams (1997) 16 Cal.4th 635, 661.) Rather, we evaluate the totality of the
circumstances to determine “whether the defendant’s ‘ “will has been overborne” ’ by
coercion.” (People v. Williams (2010) 49 Cal.4th 405, 436.) Relevant factors include the
location of the interrogation, whether the interrogation was repeated or prolonged,
whether the defendant was deprived of food or sleep, and whether the officers made
threats or promises or used deceptive practices, among others. (Schneckloth v.
Bustamonte (1973) 412 U.S. 218, 226; People v. Dykes (2009) 46 Cal.4th 731, 752;
People v. Linton, supra, 56 Cal.4th at p. 1178.)
C. Analysis
Pearson contends his statements made during police interrogation were coerced by
threats and promises of leniency, as well as other improper interrogation techniques. He
relies upon the following facts to support his assertion: he was interrogated at the police
station at 4:00 a.m., he was questioned for more than an hour, the detectives used a
“carrot-and-stick approach” during the interrogation, they told him they already knew the
facts, they stated that the jury would not believe defendants that lie and that he would
likely receive more lenient treatment if he confessed, he might be convicted of murder if
the baby died, and they purported to empathize with anyone that might become frustrated
enough to strike a crying baby.
We begin our analysis with the alleged threat/false promise of leniency since that
is Pearson’s most compelling argument.
1. Promise of Leniency/Improper Threat
“ ‘[M]ere advice or exhortation by the police that it would be better for the
accused to tell the truth when unaccompanied by either a threat or a promise does not
render a subsequent confession involuntary.... Thus, “[w]hen the benefit pointed out by
the police to a suspect is merely that which flows naturally from a truthful and honest
27.
course of conduct,” the subsequent statement in response will not be considered
involuntarily made.’ ” (People v. Holloway (2004) 33 Cal.4th 96, 115 (Holloway).)
However, “ ‘ “if ... the defendant is given to understand that he might reasonably
expect benefits in the nature of more lenient treatment at the hands of the police,
prosecution or court in consideration of making a statement, even a truthful one, such
motivation is deemed to render the statement involuntary and inadmissible.” ’ ”
(Holloway, supra, 33 Cal.4th at p. 115.) “The offer or promise of such benefit need not
be expressed, but may be implied from equivocal language not otherwise made clear.”
(People v. Hill (1967) 66 Cal.2d 536, 549.) Thus, “even a mild promise of leniency” is
prohibited. (Brady v. United States (1970) 397 U.S. 742, 754; see People v. Neal (2003)
31 Cal.4th 63, 79 [a statement is involuntary if “ ‘ “ ‘obtained by any direct or implied
promises, however slight.’ ” ’ ”], italics added.)
“Since threats of harsh penalty often contain an implicit promise of more lenient
treatment, they are treated as promises of leniency.” (Cahill, supra, 22 Cal.App.4th at p.
311.) That does not mean however that a threat of harsh punishment, including
threatening the death penalty, will invariably contain an implicit promise of leniency.
(See e.g., People v. Spencer (2018) 5 Cal.5th 642, 675, 671 [interrogating officer’s
isolated remark about the death penalty, “ ‘if you don’t think I can’t prove this case, if
you don't think I can’t fry you, you’re sadly mistaken,’ ” among other statements, did not
amount to a promise of leniency].) “[A] constitutional violation will be found ‘only
where the confession results directly from the threat such punishment will be imposed if
the suspect is uncooperative, coupled with a “promise [of] leniency in exchange for the
suspect’s cooperation.” ’ ” (Id. at p. 675, citing Holloway, supra, 33 Cal.4th at p. 115.)
With these principles in mind, our inquiry is two-part. First, we must determine
whether a threat or clearly implied false promise of leniency was made. Second, if such a
threat or promise was made, we must determine whether it was a motivating cause of
28.
Pearson’s incriminating statements. (People v. Johnson (1969) 70 Cal.2d 469, 478 [a
promise of leniency must be “a motivating cause of the confession”].)
a. Sergeant Bishop Alluded to Leniency in Exchange for a Confession
“The application of the axiom that involuntary confessions are not admissible is
not always a simple matter; the concept of voluntariness is multifaceted and has been
described as a ‘ “potential morass.” ’ ” (Cahill, supra, 22 Cal.App.4th at p. 310.) As the
proceeding cases illustrate, there is no bright-line test for voluntariness; the determination
is necessarily fact specific.
In Cahill, the defendant was convicted of first degree murder with special
circumstances based upon the fact that the murder occurred during the course of a
burglary, robbery, and rape. (Cahill, supra, 22 Cal.App.4th at p. 300.) After Cahill was
Mirandized, police officers told him they had irrefutable physical evidence placing him
inside the victim’s home, the location where the victim was murdered. (Cahill, at p.
303.) An officer told Cahill that he could only help himself by talking and falsely
represented that Cahill could avoid a conviction for first degree murder if Cahill admitted
that he was inside the house, that he had knowledge of the killing, but that the murder
was not premeditated. (Id. at p. 314.) This was a materially deceptive explanation of the
law of murder in California, as Cahill could still be convicted of felony murder. (Id. at p.
315.)
Our Supreme Court found that Cahill’s confession was coerced by a false promise
of leniency—that he could avoid a first degree murder conviction by admitting to the
killing but stating it was not premeditated, as well as misleading representations about the
law of murder. (Cahill, supra, 22 Cal.App.4th at p. 314.) The court explained that while
police deception is generally permissible, such deception cannot include a false promise
of leniency. (Id. at p. 315.)
29.
In People v. Flores (1983) 144 Cal.App.3d 459 (Flores), a case relied upon by
Pearson, an interrogating officer told Flores, the suspect in a robbery/murder, that he “
‘could go to the ... gas chamber’ ” and added, “ ‘[m]aybe that’s not so, you know, but
you’re the only one that knows that.’ ” (Id. at pp. 466, 471.) By telling Flores that only
he could help himself “ ‘out of this mess,’ ” the officer implied that “[o]nly by confessing
his involvement in the decedent’s death could [Flores] avoid the possible death penalty.”
(Id. at p. 471.) Then, exacerbating the situation, police suggested that if Flores provided
a version of events that supported a claim of self-defense, he might be released on his
own recognizance until trial. (Id. at pp. 471-472.)
Flores broke and made inculpatory statements. (Flores, supra, 144 Cal.App.3d at
p. 472.) On appeal, this court ultimately concluded that Flores’s statements were
unlawfully induced by the combined implied threats and promises made by the
interrogating officers. (Ibid.)
In People v. Brommel (1961) 56 Cal.2d 629 (overruled on another ground in
Cahill, supra, 5 Cal.4th at pp. 509-510, fn. 17), the defendant was suspected of
murdering his infant daughter. (People v. Brommel, at p. 631.) Brommel insisted that he
had never beaten or struck his daughter, despite vigorous urging and suggestions from the
officers that they knew that he had done so. (Id. at p. 633.) During the interrogation, one
of the officers told Brommel, “ ‘[I]f we just wrote one word across there, Liar, that
would-you can go up before that judge and you can ask him for all the breaks in the
world, and he is not going to believe you because when a man tells a lie, then even the
truth becomes a lie because he is branded as a liar.’ [¶] ‘Now if you want to meet that
judge that way, if you want to meet your maker that way, well, brother, that is up to
you.’ ” (Ibid.) Brommel subsequently confessed. (Id. at p. 634.)
Our Supreme Court held that Brommel’s confession was involuntary and therefore
inadmissible. (People v. Brommel, supra, 56 Cal.2d 629 at pp. 633-634.) The court
30.
explained that the officer’s statement was both a threat and an implied promise of
leniency. (Ibid.)10
In contrast, in Holloway a detective mentioned in passing to Holloway that he was
investigating a “death penalty case,” and alluded to avoiding the death penalty if the
murders were accidental or “resulted from an uncontrollable fit of rage during a drunken
blackout.” (Holloway, supra, 33 Cal.4th at pp. 112-117.) The threat of the death penalty
was not hypothetical. Holloway, who was suspected of killing two young women in their
home, with signs of sexual assault, “was a clear candidate for capital prosecution.” And,
based upon Holloway’s own interrogation, this was not a surprise to him. (Id. at pp. 115-
116.)
On appeal, our Supreme Court found that Holloway’s incriminating statements
made during the course of his interrogation were voluntary. The court observed that the
detective “gave [Holloway] no such misleading assurances. No specific benefit in terms
of lesser charges was promised or even discussed, and [a detective’s] general assertion
that the circumstances of a killing could ‘make[] a lot of difference’ to the punishment,
while perhaps optimistic, was not materially deceptive.” (Holloway, supra, 33 Cal.4th at
p. 117; see also, id. at p. 116 [“[t]o the extent [the detective’s] remarks implied that
giving an account involving blackout or accident might help [the] defendant avoid the
death penalty, [the detective] did no more than tell [the] defendant the benefit that might ‘
“flow[] naturally from a truthful and honest course of conduct” ’ ”].)
10 Pearson also directs this court to People v. Denney (1984) 152 Cal.App.3d 530.
There, the interrogating officers presented a false hypothetical to the defendant, suspected
of a robbery/murder, which suggested that the defendant would receive leniency if he
made a full confession. (Id. at pp. 541-542.) Not only was the promise of more lenient
treatment more clearly implied than any hypothetical promise here, the interrogating
officers in Denney failed to honor the defendant’s request for an attorney, violating his
Miranda rights. (Id. at pp. 538-540.) We do not discuss Denney further as it is clearly
distinguishable on its facts.
31.
Finally, in People v. Zabelle (2022) 80 Cal.App.5th 1098 (Zabelle), a case relied
upon by the Attorney General, the admission of Zabelle’s confession made during police
interrogation was upheld despite his claim that the interrogation was improperly coercive.
Zabelle identified two statements that he asserted were improper promises of a benefit or
leniency in exchange for a confession. First, an interrogating officer told Zabelle,
“ ‘[T]here is a very critical time where you can earn possibly some consideration.’ ” (Id.
at p. 1107.) Second, that same officer stated, “ ‘[W]e can’t make any guarantees but
sometimes being honest and up front, admitting your involvement and—and what you
did can go a[]ways to showing your remorse’ and ‘[s]ometimes that works in your favor.
Sometimes it doesn’t.” (Ibid.)
The appellate court found the first statement too vague to amount to a promise of
anything. (Zabelle, supra, 80 Cal.App.5th at p. 1107.) With respect to the second
statement explaining that an early showing of remorse might earn Zabelle some
consideration, the court concluded that the detective had done nothing more than point
out the benefits “ ‘ “ ‘which flows naturally from a truthful and honest course of
conduct.’ ” ’ ” (Ibid., see, Cal. Rules of Court, rule 4.423(b)(8) [for sentencing purposes,
it is a factor in mitigation if “[t]he defendant voluntarily acknowledged wrongdoing
before arrest or at an early stage of the criminal process”].)
In the case at bench, the detectives’ tactics were not as patently egregious as those
employed by the officers in Cahill and Flores, but they did more than simply point out
the benefits that might “flow[] naturally from a truthful and honest course of conduct.”
(People v. Johnson, supra, 70 Cal.2d 469, 479.) Sergeant Bishop initially told Pearson
that G.W. might not survive his injuries. The record from the in limine proceedings fails
to show that the detectives were informed that G.W. might not survive his injuries. As
the testimony from Pearson’s trial would ultimately bear out, this was either a ruse or
32.
Sergeant Bishop’s unsubstantiated opinion, communicated in such a manner that a
reasonable person might have believed that this was a medical opinion.11
The “use of deceptive statements during an investigation does not invalidate a
confession as involuntary unless the deception is the type likely to procure an untrue
statement.” (People v. McCurdy (2014) 59 Cal.4th 1063, 1088; see e.g., People v.
Thompson (1990) 50 Cal.3d 134, 167, 170 [that the interrogating officers’ false
statements to the defendant that police found physical evidence linking him to the
victim’s death did not render the defendant’s confession involuntary].)
Here, Sergeant Bishop’s statement about G.W. possibly not surviving his injuries
might encourage Pearson to talk but it was not the type of representation that would
induce him to make an untrue statement. Indeed, Pearson continued to deny beating or
intentionally harming G.W. after Sergeant Bishop made this statement and after
Detective Beagley pointed out that the “baby was beaten almost to death.”
11 At trial, Sergeant Bishop admitted that no one had informed him that G.W.’s
injuries were going to result in death. Trial counsel asked Sergeant Bishop, “Based on
your observations of [G.W.] or anyone you spoke to, did you have any reason to believe
at that point.” Trial counsel withdrew her question before Pearson could answer and then
asked, “So you had no knowledge at this point that these injuries would result in the
death of [G.W.].”
Sergeant Bishop replied, “I didn’t know if he was going to die or not. I just know
he had skull fractures and he looked really messed up.” Thus, it is unclear if Sergeant
Bishop used a ruse to elicit a confession from Pearson, or if he genuinely believed, based
upon his honest but unsubstantiated opinion, that the baby was not going to survive. It is
also unclear whether Pearson understood that Sergeant Bishop was offering a non-
qualified medical opinion when he stated the baby might not survive. The issue was not
explored at Pearson’s trial nor on appeal. Moreover, trial counsel did not renew her
motion to suppress Pearson’s statements at trial based upon Sergeant Bishop’s
representation. We therefore presume, that while the admissibility of Pearson’s
confession was preserved for appeal, Pearson does not challenge Sergeant Bishop’s
representation concerning the baby’s possible death.
33.
Where the interrogation arguably took a turn however occurred when Sergeant
Bishop linked the baby’s possible death to a threat during the “long speech.” Following
repeated extortions for Pearson to “tell the truth,” Sergeant Bishop told Pearson, “If you
don’t start being honest, and this baby dies, you’re gonna be charged with a homicide,
….” Sergeant Bishop added:
“Because you are not telling the truth and you just
beating around the bush and telling these different
stories is not going to help your case, okay? What is, is
you being honest and telling us what really happened,
okay? Cause we already know more than you’re telling
us. Ok? We already know a very big portion of the
truth of what actually happened and we’re just waiting
for you to be truthful, and tell us. Tell us your version,
tell us what happened. Dayvone, people make mistakes
ok. The difference in what happens after you make a
mistake is how you respond to it afterwards, okay?
And that makes the difference whenever cases like this
end up being looked at by judges and juries, okay?
They don’t always necessarily look at what happened
during the accident, the fall, the crime, whatever you
want to call it. They don’t always look at just that,
okay? They look at the response to the person that was
involved afterwards and how they respond to it. Now,
if that person denies things, lies, tries to come up with
any different story possible to get their butt out of
trouble and the evidence shows different, juries and
judges do not like that, ok. Because they think this guy
did something and he’s coming up with all these
bullshit stories, he’s not remorseful for it. You know,
and their opinion is going to be screw him, give him
everything that we can versus a person who says I
messed up, I made a mistake and I’m sorry. Whenever
they see that, they can relate to that, respect it and show
remorse.”
Although Sergeant Bishop’s statement was qualified by the death of the baby, an
event which may or may not occur, it was nonetheless conveyed as a threat. (Cahill,
supra, 22 Cal.App.4th at p. 311 [“a ‘promise’ is not restricted to representations
34.
concerning the future conduct of the person making the promise,” it also “describe[s]
promises of action or inaction by third persons, as in a guaranty, and even to a promise of
the occurrence of events not within human control, as in a warranty of an existing or past
fact”].)
Sergeant Bishop’s statements could be construed to have conveyed “that by
cooperating and telling what actually happened [Pearson] might not be accused of or
found guilty of … murder (i.e. more lenient treatment by the court or jury).” (People v.
Johnson, supra, 70 Cal.2d at p. 479.) If G.W. died, and Pearson admitted he had never
intended to kill the baby, but he admitted to striking the baby, he could possibly be
charged only with involuntary manslaughter. “To someone unskilled and uncounseled in
the law it might have offered a hope ... that he might be cleared of [more] serious
charges.” (Ibid.)
An offer of leniency in exchange for a confession was not as clearly implied here
as in Flores, where officers suggested that if Flores discussed the crime, he could
possibly be released on his own recognizance until trial. (See Flores, supra, 144
Cal.App.3d at pp. 471-472). Nonetheless, a benefit was still implied.
Compounding the issue, Sergeant Bishop’s statement about a possible homicide
charge was then almost immediately followed by advising Pearson that lying would
agitate the jury and the judge, and that if Pearson’s version of events were proven to be
false at trial, his dishonesty and lack of remorse would result in the maximum sentence
possible. Declaring that Pearson’s dishonesty would agitate the judge and jury was not,
by itself, problematic. “No constitutional principle forbids the suggestion by authorities
that it is worse for a defendant to lie in light of overwhelming incriminating evidence.”
(People v. Carrington (2009) 47 Cal.4th 145, 174; see, e.g., People v. Case (2018) 5
Cal.5th 1, 25-26 [finding the defendant’s incriminating statements were not coerced
where detectives told the defendant he was facing the death penalty, that he would be
35.
better off if he confessed, and that providing an explanation could benefit him “ ‘in the
long run’ ”].)
It was also not improper for Sergeant Bishop to suggest that a showing of remorse
would mitigate his potential punishment. An early showing of remorse is, after all, a
factor in mitigation considered at sentencing. (See People v. Andersen (1980) 101
Cal.App.3d 563, 579 [statements by police communicating that a showing of remorse is a
factor which mitigates punishment is “a truthful legal commonplace with which all
persons familiar with criminal law would agree”]; accord, Zabelle, supra, 80 Cal.App.5th
at p. 1107.)
However, when woven into the tapestry of the interrogation, Sergeant Bishop’s
statement conveyed the following: Pearson could face a homicide charge (murder or
involuntary manslaughter) if he did not “start being honest”; the fact that the baby was
intentionally “struck,” “thrown,” or “slammed against the ground multiple times” could
be proven, with certainty, by medical experts; and Pearson’s continued dishonesty would
cause the judge and the jury to “give him everything that [they] can,” i.e., to impose the
maximum possible sentence. If a reasonable person understood he or she might be
prosecuted for murder, and the physical evidence told a story of severe injuries being
intentionally inflicted upon a baby, they could be coerced into minimizing their
responsibility by adopting a narrative that would support involuntary manslaughter. (See
generally, People v. Tate (2010) 49 Cal.4th 635, 684 [opining that falsely representing
that a crime victim has died could motivate a suspect to confess to less culpable facts to
escape liability for murder].) But we are not persuaded that Pearson was in fact coerced.
As demonstrated by the preceding analysis, substantial effort is required to reach
the conclusion that Sergeant Bishop’s long speech threaded the needle between
conveying a threat and a clearly implied promise of leniency. Simply because the
aforementioned deductions are possible does not mean that Pearson in fact made these
36.
deductions during the interrogation. But, assuming Sergeant Bishop’s long speech
crossed the line, considering the totality of the circumstances, there is insufficient
evidence that Pearson’s subsequent inculpatory statements were proximately caused by
the improper comments.12 Our analysis is fully set forth below.
b. The Motivating Cause of Pearson’s Statements
Whether a coercive police tactic was used and whether it motivated the subject’s
statements are two separate questions. (People v. Vasila (1995) 38 Cal. App. 4th 865,
873.) “Although coercive police activity is a necessary predicate to establish an
involuntary confession, it ‘does not itself compel a finding that a resulting confession is
involuntary.’ ” (People v. McWhorter (2009) 47 Cal.4th 318, 347, citing People v.
Bradford (1997) 14 Cal.4th 1005, 1041.)
“ ‘A confession is “obtained” by a promise within the proscription of both the
federal and state due process guaranties if and only if inducement and statement are
linked, as it were, by “proximate” causation.... The requisite causal connection between
promise and confession must be more than “but for”: causation-in-fact is insufficient.’ ”
(People v. Tully (2012) 54 Cal.4th 952, 985-986, citing People v. Benson (1990) 52
Cal.3d 754, 778.) Thus, the improper threat or promise must actually induce the subject
12 Although not addressed by the parties, we further observe that at the conclusion
of the interrogation, Sergeant Bishop told Pearson that, “It has no bearing on the … case
or any criminal aspect or anything whether you hit [G.W.] twice or twenty-five times it
really doesn’t. So, I just want to make sure that you aren’t leaving anything out and if
you are now is the time.” Pearson replied, “beside the bruises and the … fractured skull
in the back and him jumping that’s about it.”
Sergeant Bishop’s statement was potentially misleading as the nature and severity
of the injuries Pearson inflicted upon G.W. would undoubtedly be relevant to a criminal
prosecution against him. However, because Pearson had already admitted to causing the
baby’s “head injury” before this improper representation was made, even though he did
not specifically state that the injury was at the back of the baby’s skull, Sergeant Bishop’s
statement was not prejudicial.
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to make incriminating statements rather than be a “but for” cause of the subject’s
statements. (Hutto v. Ross (1976) 429 U.S. 28, 30; accord, People v. Benson, at pp. 778-
779; People v. Lucas (1995) 12 Cal.4th 415, 442.) “ ‘If the test was whether
a statement would have been made but for the law enforcement conduct [(cause-in-fact)],
virtually no statement would be deemed voluntary because few people give incriminating
statements in the absence of some kind of official action.’ ” (People v. Benson, at pp.
778-779, citing U.S. v. Leon Guerrero (9th Cir. 1988) 847 F.2d 1363, 1366, fn. 1.)
“Whether the defendant lost his free will and made involuntary statements does
not rest on any one fact, however significant it may seem.” (People v. DePriest (2007) 42
Cal.4th 1, 34-35, italics added; People v. Williams, supra, 16 Cal.4th at p. 661 [“no single
factor is dispositive in determining voluntariness”].) Rather, causation is determined by
the totality of the circumstances. (People v. Winbush (2017) 2 Cal.5th 402, 452.)
In considering the totality of the circumstances, we consider “both the
characteristics of the accused and the details of the interrogation.” (Schneckloth v.
Bustamonte, supra, 412 U.S. at p. 226; People v. Tully, supra, 54 Cal.4th at p. 986, citing
People v. McWhorter, supra, 47 Cal.4th at p. 347.) “[T]he standard of proof on the
question of causation is a preponderance of the evidence.” (Cahill, supra, 22
Cal.App.4th at p. 316.)
The available record forecloses us from conclusively determining whether
Pearson’s admission to intentionally striking G.W. was proximately caused by Sergeant
Bishop’s statements, rather than by Pearson’s demonstratable falsehoods and the
mounting evidence against him. We have no doubt that Sergeant Bishop’s comments
were a cause in fact of Pearson’s ensuing incriminating statements. Indeed, for the
purpose of this appeal, we assume that to be the case. But the question is whether
Sergeant Bishop’s statements were so manipulative or coercive that they deprived
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Pearson of his ability to make an autonomous decision to confess. (See People v.
Massie (1998) 19 Cal.4th 550, 576.)
Several factors support the conclusion that Pearson was not coerced. First, the
dominant focus of the interrogation was the strong physical evidence against Pearson,
including the baby’s injuries, which could not be explained by one accidental fall. It was
not the threat of a homicide prosecution. (Cf. Cahill, supra, 22 Cal.App.4th at p. 316
[“[w]here the dominant focus of an interrogation is an implied promise of leniency and a
confession ensues, absent adduction of countervailing evidence… the confession must be
attributed to that implied promise”].) Pearson’s contradictory stories, flight from the
urgent care facility, and ill-conceived attempt to frame J.W. for causing the baby’s
injuries only pointed the finger more prominently at Pearson. Pearson could not
overcome the strong evidence implicating him in the crime, and he appeared to have
realized that the interrogating officers would not accept his version of events.
Second, although Pearson’s incriminating statements were made shortly after
Sergeant Bishop’s long speech, the bombshell revelation that the baby might not survive
was dropped early during the interrogation, 20 minutes before the long speech occurred.
Rather than compunction, the revelation was met with continued denials of wrongdoing
by Pearson, who insisted that he did not beat or strike the baby.
Upon hearing that G.W. might not survive his injuries, a reasonable person in
Pearson’s position would have known that they would likely face criminal prosecution
for manslaughter or even murder if the victim did not survive. Consequently, it is
unlikely that the threat of a homicide prosecution actually caused Pearson to confess.
Finally, even when he was threatened with criminal prosecution for homicide,
Pearson persisted in downplaying his responsibility for the complete extent of G.W.’s
injuries. He deliberately tailored his answers to the detectives’ questions in a way that
favored his own self-interest. Although he admitted striking G.W. intentionally by
39.
backhanding him twice, Pearson minimized the severity of the injuries that he had
inflicted upon the baby. For example, he denied any knowledge about how G.W. had
sustained scrapes or abrasions on his forehead and stomach, and he denied dragging the
baby on the tile floor.
In addition, Pearson continued to maintain that G.W. had jumped out of his arms,
causing the baby’s facial injuries. A story which was never corroborated, despite
Pearson’s assertion that his best friend had witnessed the incident. And, as Dr. Ofshe
himself observed during his testimony at trial, Pearson offered details of the crime that
were not suggested to him by the detectives. “ ‘This is not the behavior of one whose
free will has been overborne.’ ” (People v. Williams, supra, 49 Cal.4th at p. 444, quoting
People v. Johns (1983) 145 Cal.App.3d 281, 293.)
We further observe that other than Sergeant Bishop’s long speech, none of the
circumstances of the interrogation support the conclusion that Pearson’s statements were
coerced. The interrogation recording reveals that the detectives utilized techniques that
could fairly be characterized as aggressive. For example, they insisted that Pearson was
being untruthful, citing their superior knowledge of the events. They highlighted
discrepancies between Pearson’s statements and the physical evidence, including the
number and severity of G.W.’s injuries. And they provided Pearson with a less culpable
explanation for G.W.’s injuries, suggesting that he may have injured the baby out of
understandable frustration. These were acceptable interrogation techniques.
“ ‘[Police] [q]uestioning may include exchanges of information, summaries of
evidence, outline of theories of events, confrontation with contradictory facts, even
debate between police and suspect.’ ” (Holloway, supra, 33 Cal.4th at p. 115; see,
People v. Jones (1998) 17 Cal.4th 279, 299 [it is not improper for an interrogator to
imply superior knowledge about a crime than he or she actually possesses]; see also,
People v. Carrington, supra, 47 Cal.4th at p. 171 [police may suggest “possible
40.
explanations of the events and offer[] [the] defendant an opportunity to provide the
details of the crime”].)
Consistent with the trial court’s conclusion, the atmosphere surrounding the
questioning of Pearson was not coercive. Although the detectives acknowledged that at
some point, the tone of the interrogation became accusatory, at all times, they spoke
calmly to Pearson and assumed a friendly demeanor. The interrogation was not, on
balance, coercive.
We acknowledge that factors weigh in favor of finding that the interrogation was
coercive, including, the fact that Pearson was handcuffed, the interrogation occurred at a
police department, and it was held at 3:52 a.m.13 Considered independently or in their
totality, none of these factors compel the conclusion that Pearson’s will was overborne.
With respect to Pearson, there is nothing in the record which supports the
conclusion that his age, maturity, education, physical condition, or mental health may
have rendered him particularly vulnerable to the type of interrogation techniques
employed here. (See, e.g., Cahill, supra, 22 Cal.App.4th at p. 317 [defendant was 18
years old with an eighth-grade education]; In re Elias V. (2015) 237 Cal.App.4th 568,
578 [“more than one-third (35 percent) of proven false confessions were obtained from
suspects under the age of 18”].)
Further, although Pearson could hardly be described as a seasoned criminal, he
displayed some degree of criminal sophistication. Before his arrest, Pearson exchanged
text messages with Mariah wherein he attempted to blame Mariah’s brother for beating
G.W. He also attempted to conceal his identity when he and Mariah finally took the baby
13 Pearson also stated he was tired during the interrogation, but as we interpret the
record, this statement was more likely an attempt to explain his inconsistent statements
rather than deprivation of sleep. We find support for our conclusion based on the fact
that at one point during the interrogation, Pearson also claimed that he mixed up details
because he was dyslexic.
41.
to urgent care for treatment, and he fled before the police arrived. Pearson was clearly
aware of the fact that he would be a suspect and sought to exculpate himself before his
arrest.
Although Pearson remarked that he was “nervous” and “scared” during the
interrogation, that does not support his assertion that he was coerced into making
inculpatory statements. Pearson was not so nervous or scared that he was unable to parry
the detective’s questions or ask them questions. He was simply unable to keep his story
straight, suggesting he was being dishonest.
There is no doubt that Sergeant Bishop and Detective Beagley’s statements
regarding the baby’s possible death and the potential homicide charge brought this
interrogation close to the line of coercion. Despite the fact that there was strong
circumstantial evidence implicating Pearson, “confessions, ‘as a class,’ ‘[a]lmost
invariably’ will provide persuasive evidence of a defendant’s guilt [citation], ... that such
confessions often operate ‘as a kind of evidentiary bombshell which shatters the defense’
[citation], ... [and therefore] that the improper admission of a confession is much more
likely to affect the outcome of a trial than are other categories of evidence, and thus is
much more likely to be prejudicial.” (Cahill, supra, 5 Cal.4th at p. 503.)
Thus, even where there is compelling evidence of guilt, the admission of a
defendant’s confession which was the product of police coercion will often be found
prejudicial. (Cf. Cahill, supra, 5 Cal.4th at p. 505 [suggesting that the erroneous
admission of an involuntary confession may be found harmless where, “there are
numerous, disinterested reliable eyewitnesses to the crime whose testimony is confirmed
by a wealth of uncontroverted physical evidence,” the crime is videotaped, or the
defendant is caught in the commission of the crime].)
Finding no error by the trial court’s admission of Pearson’s in custody statements,
we do not address the Attorney General’s argument that the admission of Pearson’s
42.
statements was harmless beyond a reasonable doubt. We raise this issue merely to
emphasize that law enforcement must be mindful of the pitfalls of employing the type of
tactics that were used during Pearson’s interrogation.
II. The Trial Court’s Denial of Counsel’s Motion to Admit Mariah’s Statements
to a CPS Caseworker
Pearson contends that the trial court erred in denying trial counsel’s request to call
a CPS caseworker to testify about statements made by Mariah claiming she falsely
implicated Pearson in the baby’s beating. Pearson specifically argues that the trial court
erred by concluding the challenged statements were irrelevant, more prejudicial than
probative, not against Mariah’s penal interests (Evid. Code, § 1230), and inadmissible as
prior inconsistent statements of a hearsay declarant (Evid. Code, § 1202).
As discussed further below, only one of the challenged statements was admissible
as a prior inconsistent statement, but because there was ample evidence of Mariah’s lack
of veracity for the truth, the statement was cumulative and therefore properly excluded
under Evidence Code section 352.
A. Background
1. Mariah’s Statements to CPS Caseworker Bonny Holt
After the prosecution presented its case-in-chief, Pearson’s trial counsel asked to
call a CPS caseworker, Bonny Holt, to testify about Mariah’s untruthfulness. Trial
counsel sought to question Holt about statements made to her by Mariah wherein Mariah
recanted her allegations against Pearson. Holt documented Mariah’s statements in a
report written for the juvenile court after G.W. had been removed from Mariah’s custody:
“I asked [Mariah] if [Pearson] has ever struck her anywhere on her body …
and she told me he has not. I asked her if [Pearson] had ever pulled her hair
or punched her and she told me he has not. I asked her if there is any
reason that someone would say that he has and she said ‘because I said he
did.’ I asked her who she told this to and she said ‘I told my mom.’ I
asked her if she was lying to her mother when she told her that [Pearson]
had been physically abusive to her by punching her and pulling her hair and
43.
she told me that she had lied to her mother and that he never had done
those things. She stated that she also lied about [Pearson] being abusive to
her to the Detectives investigating this case because, ‘I was afraid’ and was
‘just telling them what I thought they wanted me to say.’ I asked [Mariah]
if [Pearson] has ever raised his hand up in the air in a threatening manner to
her during any argument they have ever had in their one month of dating
and she told me that he has not but she felt like he might. I asked [Mariah]
if she ever lived in [Pearson’s] home and she told me that she did not, she
only visited him there and stayed the night on a few occasions with her son.
[¶ ] I asked [Mariah] if she has ever witnessed [Pearson] do anything []
else with regards to discipline or harming him in some kind of way. She
stated that she has not. I then inquired as to the concern noted in the
referral whereby it was reported and asked why someone would say that
she has witnessed [Pearson] drag [G.W.] around on the tiled floor of
[Pearson’s] home and banging the child’s head on the tile floor. [Mariah]
told me that ‘I made it up.’ I asked her if she was being honest with me as
it was very important that I know the truth. She told me that he never did
that and that she made it up.” (Italics indicate original highlighting by the
trial court.)
The language italicized above reflects language highlighted by the trial court in
consideration of its ruling. The trial court explained, after analyzing Mariah’s statements,
that they don’t make sense without Holt’s questions. The trial court reasoned however
that a declaration against interest must be a statement that is complete in and of itself.
2. The Trial Court’s Ruling
The trial court explained that without the context of Holt’s questions, only one of
Mariah’s statements is complete such that it could be considered a declaration: “[Mariah]
told me that she had lied to her mother and that [Pearson] never had done those things.
She stated that she also lied about [Pearson] being abusive to her to the Detectives
investigating this case because, ‘I was afraid’ and was ‘just telling them what I thought
they wanted me to say.’ ”14 However, none of Mariah’s statements are disserving of her
penal interests within the meaning of Evidence Code section 1230.
14 Pearson disputes this point, asserting that even if Holt’s questions were
hearsay, she was available to testify at Pearson’s trial, and would have provided the
44.
With respect to trial counsel’s assertion that Mariah’s statements qualify as prior
inconsistent statements, the trial court observed that Mariah’s prior statements were
introduced through the testimony of third-party witnesses, including Detective Beagley.
It questioned whether these witnesses would have to be confronted with Mariah’s
inconsistent statements.
Following further argument by the parties, the trial court ultimately concluded that
Holt’s testimony was inadmissible under Evidence Code section 1202. The trial court
further held that evidence of Mariah’s statements was inadmissible under Evidence Code
section 352, finding admission of the statements would be substantially more prejudicial
than probative. The court observed there was already ample evidence adduced at trial
showing that Mariah lied, and Mariah’s statements to Holt would be cumulative of this
evidence.
As a result of the trial court’s ruling, Holt was excused as a witness. She did not
testify at Pearson’s trial.
B. Relevant Legal Principles
“ ‘The proponent of hearsay has to alert the court to the exception relied upon and
has the burden of laying the proper foundation.’ ” (People v. Turner (2020) 10 Cal.5th
786, 822.) We review a trial court’s ruling on the admissibility of evidence, including a
decision that turns on the hearsay nature of evidence, for an abuse of discretion. (People
v. Waidla (2000) 22 Cal.4th 690, 725.) Under this standard, the trial court’s decision may
only be reversed if it was “so erroneous that it ‘falls outside the bounds of reason.’
[Citations.] A merely debatable ruling cannot be deemed an abuse of discretion.
necessary context to Mariah’s responses. In analyzing whether Mariah’s statements were
admissible as declarations against her interests or prior inconsistent statements, we have
considered all of Mariah’s statements made to Holt, and we assume that Holt’s testimony
would have been admissible and consistent with her written report. We therefore do not
address the trial court’s ruling on this point.
45.
[Citations.] An abuse of discretion will be ‘established by “a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice.” ’ ” (People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335, 390.)
Pearson contends that Mariah’s statements were admissible as declarations against her
penal interests, an exception to the rule against hearsay (Evid. Code, §1230), and prior
inconsistent statements, admissible to impeach Mariah’s credibility (Evid. Code, § 1202).
In examining the trial court’s ruling, we review the ruling, not the court’s reasoning and,
if the ruling was correct on any ground, we affirm. (People v. Zapien (1993) 4 Cal.4th
929, 976.)
1. Declarations Against Penal Interests (Evid. Code, § 1202)
To justify admission of each statement, Pearson had the burden of establishing:
(1) the declarant is unavailable; (2) the declaration was against the declarant’s penal
interest when made; and (3) the declaration was sufficiently reliable to warrant admission
despite its hearsay character. (People v. Cudjo (1993) 6 Cal.4th 585, 607.)
The parties do no dispute that Mariah was unavailable as a witness. She was
Pearson’s co-defendant and had invoked her Fifth Amendment privilege not to
incriminate herself. (Evid. Code, § 240, subd. (a)(1).) The parties disagree however on
whether Mariah’s statements were disserving to her own self-interests such that the
statements qualify as declarations against her penal interests.
A declaration against interest is “inapplicable to evidence of any statement or
portion of a statement not itself specifically disserving to the interests of the declarant.”
(People v. Leach (1975) 15 Cal.3d 419, 441.) In People v. Grimes (2016) 1 Cal.5th 698,
711, our Supreme Court clarified that the exception also extends to statements “that,
though not independently disserving of the declarant’s penal interests, also are not merely
‘self-serving,’ but ‘inextricably tied to and part of a specific statement against penal
46.
interest.’ ” (Id. at p. 715, quoting People v. Samuels (2005) 36 Cal.4th 96, 120-121.)
Noting that “context matters,” the court held that statements tending “to underscore [the
declarant’s] responsibility for the crime, rather than diminish it,” are admissible as
declarations against interest. (People v. Grimes, at p. 717.)
Contrary to Pearson’s assertions, the net effect of Mariah’s statements do not tend
to implicate her as having caused G.W.’s injuries. Although Mariah’s statements, if
credited, tend to exculpate Pearson, Mariah neither directly nor indirectly inculpated
herself or otherwise assumed responsibility for the baby’s injuries.
More importantly, Pearson has not shown that Mariah’s statements, documented in
Holt’s report, were made under sufficiently trustworthy circumstances to warrant their
admission. “ ‘In determining whether a statement is truly against interest within the
meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be
admissible, the court may take into account not just the words but the circumstances
under which they were uttered, the possible motivation of the declarant, and the
declarant’s relationship to the defendant.’ ” (People v. Grimes, supra, 1 Cal.5th at p.
711.)
The record lacks sufficient assurances that Mariah’s statements to Holt were
sufficiently trustworthy. Considered in the context in which they were made, we are left
with the inescapable conclusion that Mariah recanted her statements implicating Pearson
in the baby’s beating for two reasons. First, because Mariah was facing felony child
endangerment charges based upon her failure to protect G.W. from Pearson. And second,
because the criminal prosecution against Pearson and Mariah would prevent her from
regaining custody of G.W., which Mariah desperately wanted. G.W.’s foster mother
testified that Mariah was interested in reunification, although Mariah later learned that
reunification would not be possible. Further, Dr. Musacco opined that Mariah was
attempting to minimize her culpability because she wanted to regain custody of G.W.
47.
“[S]ometimes a declarant who makes an inculpatory statement may have a
substantial incentive to exculpate others.” (People v. Grimes, supra, 1 Cal.5th at p. 716.)
That was the case here. The trial court did not abuse its discretion by finding that
Mariah’s statements to CPS caseworker Holt did not qualify as statements against
Mariah’s penal interests.
2. Prior Inconsistent Statements (Evid. Code, § 1202)
Pearson further contends that Mariah’s statements were admissible as prior
inconsistent statements. Assuming he is correct, we conclude that Pearson has failed to
demonstrate that the trial court abused its discretion by finding that Mariah’s statements
were cumulative, and therefore, inadmissible under Evidence Code section 352.
Evidence that is relevant may nonetheless be cumulative and therefore excluded under
Evidence Code section 352. (See In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843.)
To begin, we observe that under Evidence Code section 1202, prior inconsistent
statements can be used to impeach statements admitted in evidence that were made by
declarants who did not testify at trial. Thus, a hearsay declarant may be impeached by
their inconsistent statements, whether or not they had been given the opportunity to
explain or deny an inconsistency.
The inconsistent statements may be used, however, only for impeachment
purposes. Consequently, unless the statements fall within some recognized hearsay
exception, they may not be admitted for the truth of the matter asserted. (Forest Lawn
Memorial-Park Assn. v. Superior Court (2021) 70 Cal.App.5th 1, 13 [“ ‘[Evidence Code
section 1235] provides that evidence of inconsistent statements made by a trial witness
may be admitted to prove the truth of the matter stated. No similar exception to the
hearsay rule is applicable to a hearsay declarant’s inconsistent statements that are
admitted under [Evidence Code] Section 1202.’ ”].) Because the hearsay declarant is not
subject to cross-examination on their statements, there is not a sufficient guarantee of the
48.
trustworthiness of their statements to warrant their admission as substantive evidence of
the truth of the matter asserted. (Law Rev. Com. Comment to Evid. Code, § 1202.)
In view of these principles, Mariah’s statements to Holt would only have been
admissible under Evidence Code section 1202 for impeachment purposes and not for the
truth of the matter asserted, i.e., to show that she fabricated the allegations against
Pearson, blaming him for beating the baby. To this end, there was already ample
evidence adduced at trial of Mariah’s tendency to lie.
In addition to the fact that Mariah had changed her version of events to detectives
and medical professions, often during the course of the same interview, Dr. Musacco,
testified that Mariah acknowledged that she had made a conscious decision to lie for
Pearson. Mariah’s mother, D.H., also offered evidence of Mariah’s tendency to lie. She
provided specific examples of past instances where Mariah had lied to CPS and law
enforcement and testified that Mariah frequently lied because of a cognitive impairment
and to gain attention. Because there was already substantial trial evidence showing that
Mariah frequently lied, the trial court did not abuse its discretion by ruling Mariah’s
statements to Holt were cumulative, and therefore, inadmissible under Evidence Code
section 352.
The record does not support Pearson’s claim of prejudice for this same reason.
(See People v. Watson (1956) 46 Cal.2d 818 [reversal is required only when “it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error”].) Pearson’s claim of prejudice is based upon the
presumption that the jury would have been able to consider Mariah’s statements for the
truth of the matter asserted: that Mariah was recanting her allegations against Pearson.
49.
However, under Evidence Code section 1202, Mariah’s statements to Holt could only be
considered for impeachment purposes, and not for the truth of the matter asserted.15
Pearson nonetheless contends that the exclusion of Mariah’s statements was
prejudicial because if the statements had been admitted, the corpus delicti rule would
have precluded the jury from convicting Pearson based only upon his confession.
According to Pearson, if the jury had heard testimony that Mariah had recanted her
accusation against Pearson, there is a strong likelihood it would have discredited all of
Mariah’s statements. The corpus delicti rule does not apply in the manner Pearson
suggests that it does.
Under the corpus delicti rule, “ ‘the prosecution must prove the corpus delicti, or
the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a
criminal agency as its cause. In California, it has traditionally been held, the prosecution
cannot satisfy this burden by relying exclusively upon the extrajudicial statements,
confessions, or admissions of the defendant.’ ” (People v. Rosales (2014) 222
Cal.App.4th 1254, 1260, citing People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.)
However, “ ‘[t]he identity of the person who committed the crime [and the degree of the
crime] may be proved by the defendant’s statement[s] alone.’ ” (People v. Rosales, at p.
1261, citing CALCRIM No. 359 [“[i]f other evidence shows that the charged crime …
was committed, the identity of the person who committed it … may be proved by
[defendant’s] statements alone”].) The jury was instructed on this point during closing
instructions.
Because the corpus delicti rule allows the identity of the perpetrator to be proven
by a defendant’s statements alone, Pearson’s assertion of prejudice is meritless. Based
15 The likelihood of jury confusion on this point is self-evident. Even with an
admonition, it would have been nearly impossible for the jury to consider Mariah’s
statements only for their impeachment value and not for the truth of the matter asserted.
50.
upon the foregoing, we conclude that Pearson has demonstrated neither error nor
prejudice assuming error by the trial court’s exclusion of Mariah’s statements to Holt.
III. The Admission of Mariah’s Hearsay Statements to J.K., D.H., and
Dr. Musacco
Pearson challenges the admission of statements made by Mariah to three witnesses
who testified at Pearson’s trial. First, the baby’s foster mother, J.K., testified that Mariah
had told her that Pearson had hurt the baby. Second, Maria’s mother, D.H., testified that
Mariah told her Pearson had previously spanked G.W. and had caused injuries to the
baby on the day he was taken to urgent care. Finally, Dr. Musacco, Mariah’s expert
witness, testified that Mariah admitted that Pearson had abused both her and G.W., and
that Pearson had previously threatened her.
It is undisputed that trial counsel failed to lodge a timely objection to the
admission of these statements. Consequently, Pearson argues trial counsel rendered
ineffective assistance of counsel by failing to object to the challenged testimony. He
contends these statements were not only hearsay not within an exception, but that the
statements were testimonial, violating his right to confrontation. We conclude that
Pearson has failed to show trial counsel was constitutionally ineffective.
A. Background
1. Discussions Concerning Aranda/Bruton
During in limine proceedings, trial counsel argued that Mariah’s statements about
Pearson abusing G.W. made to police when she was at the hospital should be excluded
under People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States
(1968) 391 U.S. 123 (Bruton).
“[T]he Aranda/Bruton rule declares that a defendant is deprived of his or her Sixth
Amendment right to confront witnesses when a facially incriminating statement of a
nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to
consider the statement only against the declarant.” (People v. Gallardo (2017) 18
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Cal.App.5th 51, 68.) “However, because it is premised on the confrontation clause, ‘ “the
Bruton rule, like the Confrontation Clause itself, does not apply to non-testimonial
statements.” ’ ” (People v. Almeda (2018) 19 Cal.App.5th 346, 362; People v.
Washington (2017) 15 Cal.App.5th 19, 29 [“the Aranda/Bruton doctrine is grounded
exclusively in the confrontation clause and can extend no farther than the metes and
bounds of the clause defined by the United States Supreme Court”]; People v. Cortez
(2016) 63 Cal.4th 101, 129, citing Davis v. Washington (2006) 547 U.S. 813, 824 [“[T]he
high court [has] unequivocally held ‘that the confrontation clause applies only to
testimonial hearsay statements and not to [hearsay] statements that are
nontestimonial.’ ”].)
To avoid Aranda-Bruton problems, the trial court impaneled dual juries—an
alternative to severance. The trial court subsequently ruled that Pearson’s statements
made during police interrogation were admissible. Following the trial court’s ruling,
counsel withdrew her Aranda-Bruton objection to the admission of Mariah’s statements
to the police:
“[THE COURT:] … [T]he Aranda-Bruton issue would belong to
Ms. Bermudez [trial counsel for Pearson]. It was indicated to me that the
defense has absolutely no objection to continue playing certain things
which they didn’t – I believe didn’t feel met Aranda-Bruton concerns. And
I am going to assume for tactical reasons if it is on the borderline, they did
not concern themselves for tactical reasons that the rest of the interview
could be played.
“With that, Ms. Bermudez, your position?
“The Court has stated what it understood it to be. Any additions,
substractions [sic]or are you comfortable with the Court’s statement?
“[TRIAL COUNSEL]: Your Honor, just to add, after careful consideration
of the evidence in this case … I did not have an objection to the statement.”
Just prior to playing Mariah’s third interview by police for the jury, trial counsel
stated that she had a detailed discussion with Pearson “regarding the issues of Aranda-
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Bruton” and “the reasons as to the request for waiving the Aranda-Bruton issues” and
Pearson was in agreement. The trial court asked counsel whether she was “waiving any
Aranda-Bruton issues as to that interview,” and trial counsel responded affirmatively.
Trial counsel stipulated that the prosecutor could play the interview in its entirety.
While at the hospital, Mariah was interviewed by police four separate times. Her
version of events changed not only between each interview, but often, during the course
of each interview. She initially claimed that her brother, J.W., had injured the baby, then
insisted G.W. had fallen on the ground by accident, and finally, she blamed Pearson for
injuring G.W. Thus, trial counsel’s strategy appeared to be geared toward showing that
Mariah was a liar, undermining her credibility as to all of her claims.
2. The Challenged Testimony
i. Mariah’s Statements to J.K.
G.W.’s adoptive mother testified about some of her interactions and conversations
with Mariah. J.K. described a text message exchange between her and Mariah that
occurred in June 2018. J.K. warned Mariah to stay away from Pearson. With respect to
G.W.’s injuries, Mariah stated that she and Pearson had not been fighting. She claimed
that Pearson had hurt the baby because the baby “was crying too much.” Mariah also
claimed that she had observed Pearson dragging the baby on the living room floor. J.K.
testified that Mariah’s texts were consistent with what Mariah had previously told J.K.
ii. Mariah’s Statements to D.H.
Mariah’s mother, D.H., testified as a witness for the prosecution. D.H. testified
that she did not want Mariah to take G.W. over to Pearson’s home on the night of May
24, 2018, because Mariah had previously told D.H. that Pearson had spanked the baby a
few days earlier.
D.H. also testified that the police interviewed her at her home on May 25, 2018.
When they left, D.H. contacted CPS caseworker Rutledge and told her that she thought
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Pearson might be abusing G.W. based on what Mariah had told her the night before.
Mariah told her mother that Pearson had spanked the baby.
D.H. testified that the day after the baby was injured, Mariah told her mother that
the baby sustained injuries at or from “Dayvone.” According to D.H., the baby was
uninjured the last time she saw him.
iii. Mariah’s Statements to Dr. Musacco
Dr. Musacco related statements by Mariah during an evaluation he conducted with
her in October 2018, under court appointment regarding her parental fitness. According
to Dr. Musacco, Mariah acknowledged that Pearson had physically abused her, and that
Pearson told her to blame her brother for abusing G.W. Mariah claimed that she did not
protect G.W. because she was afraid that Pearson might hurt her. Then, the following
exchange occurred:
“[PROSECUTOR]: And then [Mariah] said she
denied that [Pearson] had hit her or physically abused
16
her in the past but she told me that he had threatened
her. Period. [¶] She told you that as well, right?
“[DR. MUSACCO]: Correct.
“[PROSECUTOR]: Okay.… [Y]ou ask her if she …
had done anything else wrong and she said that she
kept [G.W.] clean all the time. Period. I’m a good
mom but I made a bad decision. And you put in
parenthesis [sic] being with [Pearson] in quotations.
[¶] Is that something she told you?
“[DR. MUSACCO]: That’s exactly what she told me,
yes.
[PROSECUTOR]: … She acknowledged that
[Pearson] may have abused her son over the course of
16 The prosecutor was reading statements from Dr. Musacco’s evaluation, dated
October 1, 2018.
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several weeks but she did not previously disclose this.
That’s something she told you as well, right?
“[DR. MUSACCO]: Yes, it is.
“[PROSECUTOR]: Through your conversation with
her, she explained that she lied to the police, right?
“[DR. MUSACCO]: Yes.”
3. Trial Counsel’s Closing Argument
During closing argument, trial counsel argued that G.W. was living at the
Woodrow Avenue house “when all of this was occurring,” where he had been living for
the last two months. She further observed that G.W.’s bruises were in different stages of
healing, which supported the conclusion that he was not just injured on one night with
Pearson. Trial counsel stated that Pearson had not been living with Mariah and G.W. and
recounted compelling evidence that was adduced at trial showing that the baby had been
neglected.
Although trial counsel acknowledged that something was happening to G.W., a
fact which was irrefutable based upon the baby’s injuries, those injuries could not have
been caused by one night with Pearson. Mariah’s claims to the contrary were lies,
consistent with her overall propensity for dishonesty, in addition to the fact that she was a
suggestive individual who parroted back facts posed by law enforcement.
B. Relevant Legal Principles
To prevail on a claim of ineffective assistance of counsel, Pearson is required to
make a two-part showing. First, he must establish that “counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.”
(People v. Kelly (1992) 1 Cal.4th 495, 519-520.) Second, he must show that trial
counsel’s deficient performance was prejudicial. (Ibid.) Prejudice must be affirmatively
shown; the record must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
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reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland v. Washington (1984) 466 U.S. 668, 694.)
C. Analysis
The Attorney General submits that trial counsel made a strategic decision not to
object to Mariah’s hearsay statements related by D.H., J.K., and Dr. Musacco during their
trial testimony. (See People v. Mesa (2006) 144 Cal.App.4th 1000, 1007 [“[o]n a direct
appeal a conviction will be reversed for ineffective assistance of counsel only when the
record demonstrates there could have been no rational tactical purpose for counsel’s
challenged act or omission”]; accord, People v. Lucas (1996) 12 Cal.4th 825A; People v.
Carter (2005) 36 Cal.4th 1114, 1189 [“[a] reviewing court will indulge in a presumption
that counsel’s performance fell within the wide range of professional competence and
that counsel’s actions and inactions can be explained as a matter of sound trial
strategy”].)
According to the Attorney General, Mariah’s challenged statements bolstered trial
counsel’s theory that Mariah was a well-known liar, and was therefore, lying about her
statements to detectives blaming Pearson for injuring G.W. The statements Mariah made
to Dr. Musacco are consistent with that strategy, since Mariah denied being abused by
Pearson and then claimed otherwise during the course of the interview. She further
admitted that she had lied to law enforcement, which supports trial counsel’s theory that
Mariah has a tendency to lie. This undermines her credibility, and in so doing, her claims
implicating Pearson as having caused G.W.’s injuries. Thus, trial counsel’s failure to
object to the testimony of Dr. Musacco appears to be a matter of trial strategy.
However, Mariah’s statements to J.K. and D.H. were more damaging than
supportive of trial counsel’s strategy. It is difficult to imagine how the admission of their
testimony could have been helpful to Pearson’s case and they tend to support Mariah’s
claims to detectives implicating Pearson as having caused the baby’s injuries. We will
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assume that trial counsel’s failure to object to the admission of the challenged statements
Mariah made to J.K. and D.H. was not a matter of trial strategy, and that these statements
were hearsay not within an exception.17
We do not however accept Pearson’s assertion that not only are the statements
hearsay, they violated the Aranda/Bruton rule. “[B]ecause the confrontation clause
applies only to testimonial hearsay statements, the Aranda-Bruton doctrine’s Sixth
Amendment protections likewise apply only to testimonial hearsay statements. (People
v. Tran (2022) 13 Cal.5th 1169, 1196.) “Whether an out-of-court statement is testimonial
turns on whether the ‘objective evidence’ indicates that the statement was obtained for
the ‘primary purpose’ of ‘establish[ing] or prov[ing] past events potentially relevant to
later criminal prosecution.’ ” (People v. Washington (2017) 15 Cal.App.5th 19, 28.)
Beyond Pearson’s bare assertion, he does not explain how Mariah’s statements to
D.H. and J.K. are testimonial. The statements were not made with formality or
solemnity, nor were they made for the primary purpose of establishing or proving facts
for possible use in a criminal trial. Moreover, the fact that Mariah’s statements to J.K.
and D.H. would subsequently become relevant to a criminal prosecution does not mean
that they were primarily obtained for this purpose. (See People v. Romero (2008) 44
Cal.4th 386, 422 [“statements are not testimonial simply because they might reasonably
be used in a later criminal trial”].)
Assuming trial counsel erred by failing to object to D.H. and J.K.’s challenged
testimony on hearsay grounds, a violation of state law, we are not persuaded that Pearson
has met his burden of demonstrating prejudice. (Strickland v. Washington, supra, 466
17 The trial court concluded that many of Mariah’s statements were admissible as
admissions of a party opponent (Evid. Code, § 1220), including, Mariah’s statements to
D.H. about witnessing Pearson strike the baby against the tile floor. We nonetheless
presume, for the sake of argument, that the challenged statements are hearsay not within
an exception.
57.
U.S. at p. 697 [if the record reveals that an appellant cannot affirmatively demonstrate
prejudice, we may resolve a claim of ineffective assistance of counsel on that basis
alone].) Excluding the challenged testimony by J.K. and D.H., we are confident that the
outcome of Pearson’s trial would have been the same.
D.H. testified that the night before G.W. was seriously injured, Mariah and G.W.
left the Woodrow Avenue home. Mariah’s mother and sister did not observe injuries on
the baby when Mariah and G.W. left. However, between leaving the Woodrow Avenue
home and the point when Mariah finally sought medical treatment for the baby, G.W. had
suffered a fractured skull, scratches, and abrasions all over his body. Urgent care staff
immediately thought the baby had been abused when they initially saw him.
The fact that the baby had suffered physical abuse was undeniable based upon the
nature and severity of his injuries. The only question was by whom.
Although the testimony by D.H. and J.K. was damaging and undoubtedly
implicated Pearson as being the cause of the baby’s injuries, the most compelling
evidence came from Pearson himself. Pearson’s inartful attempt to blame J.W. for
causing the baby’s injuries, the fact that he concealed his face at the urgent care facility
and then left before law enforcement arrived, and his inculpatory admissions made during
police interrogation, strongly inculpated him in the crime. Based on the strength of the
evidence adduced at Pearson’s trial, we are confident that the jury’s verdict would have
been the same had the challenged testimony not been admitted.
Although Pearson posits that Mariah could have been responsible for injuring
G.W., the evidence showed that while she was neglectful, Mariah was not physically
abusive towards G.W. Virtually nothing inculpated her in the baby’s beating other than
the fact that G.W. was near or around her when his skull was fractured.
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As the parties recognize, “ ‘[s]urmounting Strickland’s high bar is never an easy
task.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 105.) We conclude that Pearson has
failed to surmount that bar here.
IV. The Jury Instruction on Flight
Pearson contends there was insufficient evidence to support the jury instruction on
flight (CALCRIM No. 372). We conclude that substantial evidence supported the
instruction.
A. Background
The evidence adduced at trial showed that Pearson accompanied Mariah to urgent
care when she took G.W. in for medical treatment. Pearson admitted as much when he
was interrogated by Sergeant Bishop and Detective Beagley. However, while he was at
the urgent care facility, Pearson had his hood drawn and he left before law enforcement
arrived.
Over trial counsel’s objection, the trial court granted the prosecutor’s request for
an instruction on flight. In closing argument, the prosecutor suggested that there was
evidence Pearson fled the urgent care facility, which suggested guilt:
“Someone in the reception area a black, male adult, tall, skinny
wearing a hoodie with it pulled over his head. That is a red flag
right there. Once it’s determined that the police are coming and
medical services are coming, I believe the testimony was that …
Mariah told him. He was gone. [¶] What we know for a fact is that
[Pearson] was not there when the police arrived. You should be
asking yourselves why. What did he know and what is he scared
of?”
The prosecutor subsequently told the jury: “You’ll get a jury instruction on
flight and it is my position that he knew what you know now based on the evidence
what happened. When he knew it was getting serious, he booked it. Because after
all, it is not his son, right?”
The jury was instructed on flight pursuant to CALCRIM No. 372:
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“If the defendant fled [or tried to flee] (immediately after the crime was
committed/ [or] after (he/she) was accused of committing the crime), that conduct
may show that (he/she) was aware of (his/her) guilt. If you conclude that the
defendant fled [or tried to flee], it is up to you to decide the meaning and
importance of that conduct. However, evidence that the defendant fled [or tried to
flee] cannot prove guilt by itself.”
B. Analysis
Flight does not require a defendant to physically run from a scene, nor does it
require the defendant to reach a place of safety. (People v. Bradford (1997) 14 Cal.4th
1005, 1055.) “[A] flight instruction ‘is proper where the evidence shows that the
defendant departed the crime scene under circumstances suggesting that his movement
was motivated by a consciousness of guilt.’ ” (Ibid.)
Here, the jury instruction on flight as evidence of consciousness of guilt was
appropriate based upon the evidence adduced at trial. Pearson claims that the fact that he
was wearing a hoodie was, by itself, not inherently suspicious. That may be true, but
Pearson had his hoodie drawn over his head and was looking down so that his face could
not be seen while he was in the lobby of the urgent care. Consistent with the prosecutor’s
comments, that was suspicious.
Further, Pearson did not approach medical staff or enter the urgent care facility
when G.W. was initially checked in, despite the fact that he had accompanied Mariah and
G.W. to the facility. Pearson also left before law enforcement arrived. From this
evidence, the jury could reasonably conclude that Pearson was seeking to avoid detection.
Although the jury could reach a contrary conclusion by finding that Pearson
simply went home when G.W. was transported to the hospital, that does not support
Pearson’s assertion that the flight instruction was improper. “Alternative explanations for
flight conduct go to the weight of the evidence, which is a matter for the jury, not the
court, to decide.” (People v. Rhodes (1989) 209 Cal.App.3d 1471, 1477.)
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We conclude that Pearson’s claim of instructional error is without merit. We
therefore summarily reject his remaining assertions to the contrary, including his claim of
prejudice.
V. The Recent Amendments to Section 1170, Subdivision (b) Requires Remand
for Resentencing
Finally, Pearson asserts that recent changes to section 1170, subdivision (b)
necessitate remand for a resentencing hearing. The Attorney General agrees, as do we.
On October 8, 2021, Senate Bill No. 567 (2021-2022 Reg. Sess.) was signed into
law. The new law amended the determinate sentencing law, section 1170, subdivision
(b), which delineates the trial court’s authority to impose one of three statutory terms of
imprisonment, by making the middle term the presumptive sentence for a term of
imprisonment, unless certain circumstances apply. (See Stats. 2021, ch. 731, § 1.3,
adding § 1170, subd. (b)(1), (2).)
Effective January 1, 2022, the trial court may impose an upper term sentence only
where there are circumstances in aggravation that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying all of the aggravating
circumstances have been stipulated to by the defendant or found true beyond a reasonable
doubt by a jury or a trial court if the defendant has consented to a court trial. (§ 1170,
subd. (b)(2).)
On November 18, 2020, the trial court sentenced Pearson to a prison term of 10
years, comprised of the mid-term sentence of four years on count 1, plus the upper term
sentence of six years for the great bodily injury enhancement.
It is undisputed that the amendments to section 1170, subdivision (b) retroactively
apply to Pearson’s judgment of conviction, which has not yet reached finality, and that he
61.
is entitled to a resentencing hearing. We agree and will therefore remand this matter back
to the lower court for this purpose.18
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and the matter is
remanded back to the lower court for resentencing.
SMITH, J.
WE CONCUR:
HILL, P. J.
FRANSON, J.
18 Pearson further contends that the cumulative errors identified in his opening
brief necessitate reversal of his conviction. Because we have rejected his individual
claims of error, we need not address his assertion that the cumulative effective of these
errors compels reversal.
62.